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Actions For Slander Of Title<p>Everyone's familiar with claims for defamation. Defamation occurs when one party makes a false statement about the other. The party that's been defamed can sue for money damages.</p>
<p>There's a special type of defamation claim, "slander of title," that is rarely used under Iowa law. Slander of title claims concern false claims about property. That can include any type of property, although slander of title claims are traditionally and most commonly used for real estate.</p>
<p>To win a slander of title claim, the plaintiff must prove:&#160; (1) an uttering and publication of slanderous words; (2) falsity of those words; (3) malice; (4) special damages; and (5) an estate or interest of the plaintiff in the property slandered. If the plaintiff fails to prove any of those elements, the plaintiff loses. If the plaintiff proves all of the elements, the plaintiff wins and may be able to recover money for slander of title.</p>
<p>The first element requires an actual statement about the property at issue. That statement must be "published." That usually means that the statement must be made to a third party. In rare instances, simple communication of the statement among the parties can be sufficient to constitute the requisite publication, but only if the party the statement's about repeats that statement to a third party.&#160; </p>
<p>The second element speaks for itself. The statement has to be false. True statements, no matter how bad or malicious, can never form the basis for a slander of title claim.</p>
<p>The third element, malice, of often the saving grace for defendants in slander of title cases. Even if the first two elements are met, the defendant can escape liability for slander of title if the plaintiff fails to prove that the defendants made the false statements maliciously. To prove malice, the plaintiff must establish that the defendant made the false statement in bad faith and without probable cause or a reasonable belief in the truthfulness of the statement. A mistaken belief is not sufficient to establish the malice element.</p>
<p>The plaintiff also has to prove damages stemming from the slander of title. The damages can't be speculative or hypothetical. At least involving real estate, common damages in a slander of title case are loss of market value because of the slander or attorney fees incurred in addressing any issues with the property ownership records or title chain caused by the slander. </p>
<p>One reason why slander of title cases are rare is that there is absolute immunity from slander claims for statements made during or related to judicial proceedings. The great majority of comments about someone's property occur during the court process. Iowa does not allow claims for slander based on such statements. It doesn't matter how false or malicious the statement was -- If it's related to a legal claim and confined to that legal claim and not repeated outside the court process, the statement's absolutely privileged and can't form the basis for a slander of title claim. That means that the most common type of statement about someone's property -- one made during the judicial process -- is not eligible for a slander of title claim, this eliminating many possible such claims and making them a rare event. &#160; </p>Fri, 16 Feb 2018 21:38:00 +0000http://erbelaw.com/blog/posts/actions-for-slander-of-title
Beware The Perils Of Buying A Used Car From A Private Seller<p>We hear from people who have bought a used car from a private seller and then discover that there's something wrong with the car. They want to know whether they can sue the seller for money damages or return the car to the seller and demand their money back. The answer's usually yes, they can try, but it may not be easy, as I discussed in an earlier blog post about <a href="http://erbe-law-firm.herokuapp.com/blog/posts/liability-for-fraud-in-the-sale-of-a-vehicle" title="http://erbe-law-firm.herokuapp.com/blog/posts/liability-for-fraud-in-the-sale-of-a-vehicle" target="_blank">vehicle fraud claims</a>. The best practice is to do everything possible to avoid the situation in the first place.</p>
<p>The first step is to avoid, if possible, buying a used car from a private seller. By "private seller," I mean someone not affiliated with a vehicle dealership who is selling the car on their own. You're much more likely to run into issues with a private sale instead of going through a dealership, particularly a major, longstanding dealership.&#160; </p>
<p>Major dealership operations rely on their reputations to generate sales, referrals, and repeat business. Therefore they're much less likely to knowingly sell bad vehicles without proper disclosures and much more likely to work with you to resolve the issues should any problems arise. They also have permanent physical locations and are easy to contact and find if problems do occur or, worse yet, you need to pursue a legal claim. Additionally, dealerships have the money to pay a judgment should you sue and receive one. </p>
<p>Conversely, many private sellers have none of those characteristics. They don't care about sales or repeat customers because they're not in the business of selling vehicles. If issues arise, they may have moved, even out of state, and are difficult to locate. That can create difficulties with trying to resolve the issues or prosecute a legal claim. And even if you successfully sue and receive a judgment against the seller, who's paying that judgment? The seller may not have sufficient money or nonexempt assets to satisfy the judgment and nobody has insurance to cover this sort of situation. &#160; </p>
<p>If you do decide to venture into the wild wild west of private vehicle sales, it's up to you to protect yourself and to remember that you're the one with the money and have the right to walk away before the deal's complete if you don't like what the seller's doing or refusing to do. You can learn an awful lot for free or minimal expense before you commit yourself to buying the car.&#160; Here are some things you can do:</p>
<ul><li>Search the seller's name for free on Iowa Courts Online. If you see criminal cases involving fraud, theft, dishonesty, etc. or civil claims involving such things against the seller or breach of contract or debt collection cases against the seller, you will probably want to find a different seller. Sellers who are willing to knowingly sell you a bad vehicle and not tell you about any issues often have a criminal or civil case history of doing such things.</li>
<li>Get a Carfax report for the vehicle.</li>
<li>Make sure you get the seller's disclosure statement for the vehicle, which the seller's required to provide under Iowa law.</li>
<li>Pay a reputable mechanic to inspect the vehicle, including for undisclosed accident damage if possible, in addition to obtaining the Carfax history and seller's disclosure statement. If the seller refuses to allow a vehicle inspection, take your business elsewhere because a seller with nothing to hide should have no problem if you want to pay a mechanic to conduct a pre-sale inspection.</li>
<li>Test drive the vehicle yourself and make sure everything's properly functioning. See the previous bullet point if the seller refuses to allow a test drive.</li>
<li>If the seller does disclose any issues, assume that they might be worse than the seller claims. Many private sellers will try to gain the buyer's trust by disclosing minor issues and downplaying them in the hope that the buyer will think the seller's being completely upfront and honest, when in fact the issues are greater and the seller's hoping that the buyer won't probe deeper when minor issues are disclosed.</li>
</ul>
<p>One final point -- Consider recording your discussions with the seller about the vehicle. You can legally do that openly or secretly under Iowa law. If an issue ever arises over what the seller told you or didn't tell you during the sale, you'll want an audio recording to prove that the conversations occurred in the manner that you claim they occurred. Without a recording, you could end up in the difficult situation of arguing your word against the seller's, which could go either way in a legal claim. </p>Fri, 02 Feb 2018 16:50:00 +0000http://erbelaw.com/blog/posts/beware-the-perils-of-buying-a-used-car-from-a-private-seller
Not All Sickness Is Created Equal -- Coverage For Minor Illnesses Under The Family And Medical Leave Act<p>People are sometimes surprised to learn that, generally speaking, it's legal for an employer to fire an employee because the employee misses work because of an illness or medical condition if the Family and Medical Leave Act (FMLA) doesn't apply for some reason. That can be true even if the employee has a medical excuse or doctor's note for missing work. It can even happen if the employee was eligible to seek FMLA protection for the absence.</p>
<p>There are several ways that the FMLA may not protect an employee's medical leave. The employer may not have enough employees to be covered by the FMLA. Or the employee may not have worked for the employer long enough or for enough hours to qualify for FMLA coverage. Those are the two most common reasons why a medical absence may not receive FMLA protection. Absent FMLA protection, it's often legal for an employer to fire an employee for missing work because of injury, illness, or some other medical condition.</p>
<p>Of course, even if the employer's covered under the FMLA and the employee's otherwise eligible for FMLA protection, the employer may still deny FMLA time and fire the employee for missing work. That could happen if the employee's exhausted all FMLA entitlements (480 hours per 12-month period, as determined by the employer). But FMLA denial could also happen of the employee's medical issue is not severe enough to receive FMLA protection.&#160; </p>
<p>Limiting our discussion solely to an employee's own condition, and not that of a family member, the FMLA only applies when the employee has a "serious health condition." That's not always an issue, but the situation can be tricky for lesser illnesses that don't cause hospitalization, extended incapacity, etc. because such conditions don't always qualify for FMLA protection. Employees need to be careful in such situations and not assume that they have FMLA protection simply because they're sick, even if they miss some work and have a medical excuse or doctor's note. As noted above, normally an employer can legally fire an employee for absences caused by a medical condition if for any reason the employee doesn't have FMLA protection. &#160; </p>
<p>The United States Department of Labor's FMLA regulations, which courts generally follow, state that "[o]rdinarily, unless complications arise, the common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal diseases, etc. are examples of conditions that do not meet the definition of a serious health condition and do not qualify for FMLA leave." You'll note that the Department of Labor leaves open the possibility that severe instances of such medical conditions could result in FMLA protection if the medical condition meets the definition of a "serious health condition." That means that the medical condition must have caused either inpatient medical care or "continuing treatment" by a healthcare provider. &#160;&#160; &#160; </p>
<p>"Continuing treatment" means a period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition that also involves either treatment by a health care provider two or more times within thirty days of the first day of incapacity (unless extenuating circumstances exist) or treatment by a health care provider on at least one occasion that results in a regimen of continuing treatment under the supervision of the healthcare provider, such as prescription medication. 29 C.F.R. § 825.115. </p>
<p>For "continuing treatment," the first (or only) in-person treatment visit must take place within seven days of the first day of incapacity. Covered treatment includes examinations to determine if a serious health condition exists and evaluations of the condition, but does not include routine physical examinations. It also does not include a phone call to discuss the situation with a health care provider; the employee must be actually seen and examined by the medical provider. The Department of Labor's FMLA rules also clarify that a "regimen of continuing treatment" after a single visit to a medical provider does not include taking of over-the-counter medications such as aspirin or antihistamines, or bed rest, drinking fluids, and other similar activities that can be initiated without a visit to a health care provider. </p>Mon, 29 Jan 2018 15:02:00 +0000http://erbelaw.com/blog/posts/not-all-sickness-is-created-equal-coverage-for-minor-illnesses-under-the-family-and-medical-leave-act
Iowa Court Of Appeals Case Demonstrates Methods To Avoid Iowa's At-Will Employment Rule And Noncompete Agreements<p>On January 10, 2018, the Iowa Court of Appeals issued an employment law decision, <em>Spencer Convenient Healthcare v. McGregor,</em> that shows that employees can increase their rights, which are often pathetic under Iowa law, through careful legal arguments. The case involved two issues o interest. First, could the employee sue her former employer for lost wages after she was fired? Second, was that employee bound by her noncompete agreement?</p>
<p>Spencer Convenient Healthcare (SCH) is an urgent-care medical clinic located in Spencer, Iowa. SCH hired Angela McGregor to be one of its medical providers. The parties executed an employment contract memorializing the terms of McGregor’s employment with SCH. The contract included a termination provision requiring both parties to provide ninety days written notice of any desire to terminate the employment relationship. The contract also included a non-compete clause which, upon termination, prohibited McGregor from working in another clinic within a sixty-mile radius of either SCH or LCH for two years.</p>
<p>An issue between SCH and McGregor arose over SCH's use of outdated medical supplies. SCH refused to stop that practice. Consequently, McGregor filed complaints with federal and state authorities.&#160;&#160; </p>
<p>One of SCH's owners, John Lewallen, called the office manager and advised her he recently heard one of the staff members turned SCH in to the State for using expired supplies. In a separate phone call later that day, John advised the office manager that he planned to ask McGregor if she was the one who filed a complaint, that if she responded in the affirmative, “he doesn’t want her back,” and, if she responded in the negative, he “knows she is lying.” The office manager relayed this information to McGregor.&#160; McGregor testified that, upon receiving this information, she realized she may have to start exploring other employment opportunities.</p>
<p>McGregor's employment ended a few days later. Shortly after the separation, McGregor accepted a position with Crown Clinic, another urgent-care provider. In July, Crown Clinic opened its facility near the LCH clinic. Those events led to a lawsuit between SCH and McGregor. One issue in the lawsuit was whether SCH breached the termination provision in McGregor's employment contract. Another issue was whether SCH could enforce the noncompete agreement against McGregor.</p>
<p>After trial, the district court concluded (1) John terminated McGregor’s employment on February 20, 2015; (2) the termination, which was unjust and unfair and was effectuated without proper notice, was a breach of the termination provision contained in the contract; and (3) as such, SCH was not entitled to enforcement of the non-compete clause or an award of damages. On appeal, SCH challenged the district court’s finding that it breached the employment contract. SCH contended that McGregor breached the contract first by voluntarily quitting her position without providing ninety days written notice and, as such, she subsequently breached the contract by violating the non-compete.</p>
<p>The Iowa Court of Appeals rejected SCH's arguments. It determined that McGregor did not voluntarily quit; rather, SCH fired her without complying with the termination provisions in her employment contract. As such,&#160;SCH was not entitled to enforcement of the non-compete clause or an award of damages related the noncompete agreement.</p>
<p>There are several lessons for employees from this case. First, when possible have an employment contract that sets forth the circumstances under which the employment can be terminated and the procedures for doing so. Without such provisions in McGregor's employment contract, it would've been more difficult for her to sue for damages. Second, don't quit, no matter how bad things get. Had McGregor quit instead of letting SCH fire her, she, not SCH, would've been in breach of the employment agreement and would've to pay SCH damages. Third, one way to possibly avoid a noncompete agreement is to prove that the employer also breached the employment contract and thus forfeited its right to enforce the noncompete agreement against the employee. &#160;&#160; </p>Fri, 19 Jan 2018 06:00:00 +0000http://erbelaw.com/blog/posts/iowa-court-of-appeals-case-demonstrates-methods-to-avoid-iowa-s-at-will-employment-rule-and-noncompete-agreements
Alleged Farm Product Bribery Scheme Leads To Civil Lawsuit For Money Damages<p>On December 22, 2017, the Iowa Supreme Court issued a decision in a rare type of case involving the civil remedies available under Iowa's Ongoing Criminal Conduct Act, Iowa Code 706A.2(5). That section is unique in the United States. No other state has such a law.</p>
<p>The case, <em>Westco Agronomy Company v. Wollesen</em>, arose out of a complex series of transactions involving an agricultural cooperative, a large customer of the cooperative, and a dishonest salesman. West Central Cooperative is an agricultural cooperative owned by farmers.&#160; Westco Agronomy Co., L.L.C. is a wholly-owned subsidiary of West Central formed for the purpose of streamlining delivery of agronomy products, including seed, fertilizer, and chemicals. The Wollesens farm in Lake View. They are members of Westco.&#160; In 2005, their Westco sales representative was Chad Hartzler.</p>
<p>The trouble arose because Hartzler began running an illegal scheme, the nature of which differed depending upon which person was asked. Hartzler claimed that Wollesen bribed him in exchange for cheaper soybeans. Wollesen denied ever bribing Hartzler.</p>
<p>For the next several years until 2011, the Wollesens purchased seed, fertilizer, and chemicals from Westco at what they understood to be very reduced prices while continuing to also make direct payments to Hartzler. The Wollesens asserted that their direct payments to Hartzler were on Hartzler’s instruction as “commission” for his sales and that the reduced prices were not suspect because Hartzler touted himself as “the deal maker.”</p>
<p>To conceal from Westco his low-price sales to the Wollesens, Hartzler input higher prices into the sales system than he actually charged the Wollesens. As a result, Westco consistently billed the Wollesens more than the Wollesens actually paid.&#160; The effect was a growing deficit in the Wollesens’ account on Westco’s books. Although Westco maintained that it sent regular bills to the Wollesens based upon the higher prices reflected on its own books, the Wollesens generally denied having received the statements and later suggested Hartzler had intercepted them.</p>
<p>Hartzler resigned from Westco in 2011. As part of his resignation he confessed to the scheme he'd been running with the Wollesens' product. Hartzler revealed that he had accepted direct payments from the Wollesens in exchange for lower prices on Westco products.</p>
<p>In 2013, Hartzler was charged with wire fraud in federal court. The government alleged that Hartzler had engaged in a scheme with Bill Wollesen to defraud Westco. Hartzler pled guilty and was sentenced to fifty-one months in prison. None of the Wollesens were charged.</p>
<p>Westco and the Wollesens blamed each other for Hartzler’s scheme. Westco argued that the Wollesens bribed Hartzler repeatedly over a period of years to obtain prices below Westco’s own costs. The Wollesens argued that Westco should have been aware of Hartzler’s scheme and that they were the ones harmed by it.</p>
<p>The competing accusations resulted in a lawsuit in which Westco and the Wollesens made claims against each other. The Woolesens' claims against Westco included an allegation under Iowa Code 706A.2(5). The issue on appeal was whether Iowa Code 706A.2(5) was constitutional. That law states that "[i[t is unlawful for a person to negligently allow property owned or controlled by the person or services provided by the person, other than legal services, to be used to facilitate specified unlawful activity, whether by entrustment, loan, rent, lease, bailment, or otherwise." Numerous civil remedies, including money damages, are available if a violation of 706A.2(5) is proved.&#160; </p>
<p>Questions concerning 706A.2(5)'s constitutionality arose because of a portion of it that shifts the burden of proof to the defendant: "The defendant shall have the burden of proof by a preponderance of the evidence as to circumstances constituting lack of negligence and on the limitations on damages in this subsection." The general rule is that such a presumption in a civil case violates the Due Process Clause of the United States Constitution and the Iowa Constitution if it is arbitrary or operates to deny a fair opportunity to rebut it. The Iowa Supreme Court concluded that 706A.2(5)'s requirement that defendants disprove that they were negligent violated the Due Process Clause of the United States Constitution and the Iowa Constitution and was thus unconstitutional.</p>
<p>Even though the court determined that the burden-shifting portion of 706A.2(5) was unconstitutional, it did not invalidate the entire section. Without the burden-shifting presumption, the standard of proof under 706A.2(5) is what's usually found in the law -- The plaintiff has the burden of proving the defendant's negligence and the damages caused by that negligence. Thus the rest of the statute survived and would be available to parties like the Wollesens', but without the benefit of the section that shifted the burden to defendants to prove that they were not negligent.</p>Fri, 22 Dec 2017 17:08:00 +0000http://erbelaw.com/blog/posts/alleged-farm-product-bribery-scheme-leads-to-civil-lawsuit-for-money-damages
Determining Federal Minimum Wage Compliance -- Do You Consider Every Hour Worked Separately Or The Workweek As A Whole?<p>An issue that sometimes arises in minimum wage cases under federal law concerns how courts should determine whether an employer has paid the applicable hourly minimum wage. Are courts supposed to consider each hour separately? Or do they consider the workweek as a whole, divide the total weekly compensation by the number of hours worked, and determine whether that per-hour average meets the applicable hourly minimum wage? For example, if an employee is sometimes paid $9.50 per hour and at other times receives $5 per hour for a forty-hour workweek, has the employer violated minimum wage law by paying $5 for some hours worked, or has it complied with minimum wage law because the employee's pay averages to $7.25 per hour for the week?</p>
<p>The federal minimum wage statute, 29 U.S.C. § 206(a)(1)(C), doesn't offer much guidance for this issue. The federal minimum wage law simply states that "[e]very employer shall pay to each of his employees who in any workweek is engaged in commerce . . . not less than . . . $7.25 an hour." Although the statute sets the minimum wage that employees must be paid each hour, it does not definitively prescribe the computation period or say that the only permissible measure is the hour. Rather, the statute is open to an interpretation allowing for averaging over a longer period of time, like a day or a week when reviewing whether an employee has received the applicable hourly minimum wage.</p>
<p>The United States Department of Labor, the agency tasked with implementing and enforcing federal minimum wage law, said in 1940 that it would apply the workweek method, rather than an individual per-hour analysis, in enforcing hourly minimum wage payments. The DOL's Field Operations Handbook specifically states that "an employee subject to [federal minimum wage law] is considered to be paid in compliance if the overall earnings for the [workweek] equal or exceed the amount due at the applicable [minimum wage]." Moreover, the Department of Labor's website provides that "[t]he workweek is the basis on which determinations of. . . compliance with the wage payment requirements of the FLSA are made."</p>
<p>Federal courts have consistently followed the Department of Labor's 1940 policy statement. Most federal courts that consider this question have ruled that the Department of Labor's "workweek" standard is the correct analysis. The federal courts usually decide that the minimum wage law's purpose is accomplished as long as the total weekly wage paid by an employer meets the minimum weekly requirements of the minimum wage statute.</p>
<p>An important component of the courts' analysis is that Congress has never changed the minimum wage law to state that the workweek method is an improper calculation even though Congress has amended the minimum wage statute since that law's 1938 passage. That Congress has changed the minimum wage law without rejecting the workweek method is significant because, when that happens, courts assume that Congress's failure to overrule the prevailing judicial decisions means that the courts have interpreted the law in the manner intended by Congress. The theory is that, if Congress though the courts were reaching the wrong legal conclusions, Congress would say so by changing the law at issue. When Congress doesn't do so, the courts assume that they're getting the analysis right. </p>
Fri, 08 Dec 2017 06:00:00 +0000http://erbelaw.com/blog/posts/determining-federal-minimum-wage-compliance-do-you-consider-every-hour-worked-separately-or-the-workweek-as-a-whole
The "Home Worker" Rule In Federal Overtime Cases<p>An issue that occasionally comes up in federal overtime cases concerns employees who either work from their home or actually live on their employer's premises. Examples of such employees are emergency workers, dispatchers, canine officers, and workers at group homes and the like. Since such employees work where they live and their employers can't monitor them all of them time (as compared to an office worker with a standard 8-5 shift), federal law has developed special rules for determining the amount of time worked by such employees for purposes of deciding whether they're entitled to overtime compensation.</p>
<p> The analysis begins with a federal regulation, 29 C.F.R. 785.23, entitled "Employees residing on employer's premises or working at home." That rule issued by the United States Department of Labor provides that:</p>
<p>"An employee who resides on his employer's premises on a permanent basis or for extended periods of time is not considered as working all the time he is on the premises.&#160; Ordinarily, he may engage in normal private pursuits and thus have enough time for eating, sleeping, entertaining, and other periods of complete freedom from all duties when he may leave the premises for purposes of his own.&#160; It is, of course, difficult to determine the exact hours worked under these circumstances and any reasonable agreement of the parties which takes into consideration all of the pertinent facts will be accepted." </p>
<p>This regulation means that, for employees who work at home or live at their employer's place of business, the employer and the employee may reach a "reasonable agreement" as to the employee's compensation rather than requiring the employer to track exactly how much the employee's working when there's no real good way for the employer to do so. Cases in which the employer asserts that 785.23 is applicable raise at least three questions: (1) does 785.23 apply?, (2) is there an agreement for compensation?, and (3) is that compensation agreement reasonable?&#160; </p>
<p>Regarding the first question, courts almost always find that 29 C.F.R. 785.23 applies to a "home worker" when an an employer raises that argument. It seems to matter little how restrictive the employee's duties are relative to having to respond to calls or other matters. Even people who are required to stay at home to answer telephone or radio calls and cannot leave during that time period fall under 785.23 as long as they can sleep, eat, engage in leisure activities, and visit with friends and family while stuck at home. Very few of these case turn on whether 785.23 actually applies.</p>
<p>The next issue, whether there was an agreement for compensation, has been a little more successful among the federal courts, although the courts still seem inclined to find an agreement in most instances when a 785.23 argument's made. But there needs to be an actual "agreement." An employer simply telling an employee what he or she will make for their home-based working time is not always sufficient to establish an "agreement" as required by 29 C.F.R. 785.23.</p>
<p>The fight in these case normally centers on whether the compensation agreement was "reasonable." Reasonableness must be evaluated in light of all of the surrounding circumstances, as indicated by 785.23’s reference to considering "all of the pertinent facts." In evaluating a 785.23 agreement’s reasonableness, courts consider (1) whether there was an on-premises living requirement; (2) whether there were excessive geographical restrictions on employee’s movements; (3) whether the frequency of calls was unduly restrictive; (4) whether a fixed time limit for response was unduly restrictive; (5) whether the on-call employee could easily trade on-call responsibilities; (6) whether the use of a pager could ease restrictions; and (7) whether the employee had actually engaged in personal activities during call-in time. The agreement should take into account not only the actual time spent in answering the calls, but also some allowance for the restriction on the employee’s freedom to engage in personal activities resulting from the duty of answering the telephone.</p>Fri, 24 Nov 2017 06:00:00 +0000http://erbelaw.com/blog/posts/the-home-worker-rule-in-federal-overtime-cases
Controlled Substance Exclusions In Accidental Death Policies<p>Certain types of insurance policies, normally called "accidental death" policies or something similar, provide benefits if the person insured under the policy dies in an accident. Those policies often include exclusions or limitations on coverage that apply under certain circumstances. One common exclusion or limitation eliminates coverage if the deceased insured had drugs or alcohol in their system at the time of death.</p>
<p>The impact of such controlled substance exclusions, and beneficiaries' ability to overcome them and receive benefits, depends mostly on the exclusion's language. Three general types of controlled substance exclusions can be found in accidental death policy. First, an exclusion that prohibits coverage if the insured had drugs or alcohol in their system at the time of death. Second, an exclusion that eliminates coverage if the insured had drugs or alcohol in their system and such substances directly or indirectly caused the insured's death. Third, an exclusion that forecloses coverage if the insured's intoxication by drugs or alcohol caused or resulted in the insured's death.</p>
<p>The first category of drug or alcohol exclusions is the most difficult to avoid. That's because there's no review of whether the insured's intoxication had anything to do with the death. It's enough that the insured simply had drugs or alcohol in their system. Now, many states prohibit this type of exclusion because of its harshness and the fact that the insurance company can avoid paying benefits even if the insured's death and the intoxication were completely unrelated. In those states that don't statutorily prohibit such exclusions, their courts will still read a cause-and-effect requirement into the exclusion as a matter of policy to avoid unfair results.</p>
<p>The next category of exclusion, which allows for benefits denial if the insured's intoxication directly or indirectly caused death, is not very favorable to beneficiaries either. The use of "indirectly" allows the insurance company to avoid benefits even if the insured's intoxication was merely a minor factor in the insured's death. Thus, even if something else was more important in causing the insured's death, such as a chronic condition, a "direct or indirect cause" controlled substance exclusion can still apply even if the intoxication was not the primary or predominant cause of death.&#160; </p>
<p>The final category of controlled substance exclusions is the most favorable to insureds. An intoxication exclusion that only applies if the intoxication "caused" or "resulted in" the insured's death requires the insurance company to prove that the intoxication was more than a contributing factor in the death or a remote cause of the death. Under this type of controlled substances exclusion, the insurance company must demonstrate that the insured's intoxication was the primary cause of death, such that death wouldn't have occurred except for the intoxication. &#160; </p>
<p>The second and third categories of controlled substances exclusions often necessitate a fight among medical experts regarding the insured's cause of death and what connection, if any, the insured's drug or alcohol use had to the death. Autopsies, toxicology reports, and medical records are often an important part of such arguments. The insurance company will have the burden of proving that the controlled substance exclusion applies. </p>Fri, 10 Nov 2017 06:00:00 +0000http://erbelaw.com/blog/posts/controlled-substance-exclusions-in-accidental-death-policies
Caution -- Building Your Own House And Acting Like A Builder Can Expose You To Liability For Defective Construction<p>On October 25, 2017, in <em>Sokol v. Morrissey</em> the Iowa Court of Appeals considered a rare case in which someone not in the construction industry decided to serve as the builder for his own house and was later sued for defective construction. The court of appeals concluded that someone who builds their own house as a hobby can, at least under the circumstances of this case, be considered a "builder-vendor" and liable for defective construction. The key is whether the person serving as their own builder or general contractor plans to live in the home or intends to sell it.</p>
<p>The Morrisseys decided to build a home for their retirement. Bob Morrissey, who had never built a home before, acted as the general contractor for the project. Bob began the home-building process by hiring an architect to design the home and purchasing a tract of land. He listed himself as the owner and developer of the land. The Morrisseys also created an informal entity, “Our Home Builders,” which Bob explained was meant to help keep home-building expenses separate from personal expenses. Bob created business cards for “Our Home Builders” and listed the Morrisseys’ home address as the “business address.” He gave the cards to businesses involved with the project. With assistance from a number of subcontractors, Bob began construction.</p>
<p>When Bob had nearly completed construction and the Morrisseys prepared to move, Eileen Morrissey became ill. They decided against moving and contacted a realtor about selling the newly constructed home. On the full listing of the property, the realtor identified the builder of the home as “Our Home Builders.”</p>
<p>The Sokols began experiencing problems within three months of moving into the house. They first noticed issues with the geothermal unit. Next, electrical issues arose. The Sokols were unable to locate the security system’s wiring Bob claimed to have installed. And then various faucets, both inside and out of the home, started leaking. Nearly five years after the sale, the Sokols wrote to Bob requesting he remedy several issues they continued to experience with the home, including flooding in the basement; leaking from the roof, gutters, and windows; cracking in the siding; rocks falling from the retaining wall; improper installation of the geothermal unit and air conditioner; and faulty electrical wiring. The Sokols eventually filed suit against the Morriseys, including a claims for defective construction.</p>
<p>On appeal, the issue was whether Bob Morrissey was a "builder-vendor" and subject to liability for defective construction. The trial court found that the Sokols could not recover for construction defects because Bob Morrissey did not fit the definition of a builder-vendor. Under Iowa law:</p>
<p>"[A] person who is in the business of building or assembling homes designed for dwelling purposes upon land owned by him, and who then sells the houses, either after they are completed or during the course of their construction, together with the tracts of land upon which they are situated, to members of the buying public. The term “builder” denotes a general building contractor who controls and directs the construction of a building, has ultimate responsibility for a completion of the whole contract and for putting the structure into permanent form thus, necessarily excluding merchants, material men, artisans, laborers, subcontractors, and employees of a general contractor."</p>
<p>The dispute concerned whether Bob Morrissey built the house with the intent of living in it, in which case he wouldn't be considered a builder-vendor, or with the intent of selling it, in which case he'd be a builder-vendor. The court of appeals decided that Bob Morrissey was a builder-vendor and could be sued for defective construction. The Morrisseys finished construction of the home with the intent to sell it. In addition, the Morrisseys marketed the completed home to the general public. But most importantly, the Morrisseys presented themselves as builder-vendors. The Morrisseys did not disclose Bob’s lack of expertise in home-building. Instead, they promoted the home in a commercial realtor’s listing as being constructed by what sounded like a professional entity. The advertisement stated: “This unique home was built by Our Home Builders showing overwhelming detail, pride in workmanship and quality throughout.” The court of appeals thus sent the case back to the trial court for further proceedings on the Sokols' construction defect claim.</p>Fri, 27 Oct 2017 11:21:00 +0000http://erbelaw.com/blog/posts/caution-building-your-own-house-and-acting-like-a-builder-can-expose-you-to-liability-for-defective-construction
Is Congress In The Early Stages Of Changing Federal Overtime Law?<p>Two proposals affecting federal minimum wage and overtime law have begun working their way through Congress. The proposals would make significant changes to federal minimum wage and overtime law (part of the Fair Labor Standards Act) in employees' favor. It's very early in the legislative process for these proposals and there's no way to know whether some or all of the proposals will pass or when they'll pass and in what form. But, should even a portion of these proposals become law, minimum wage and overtime claims under the Fair Labor Standards Act will potentially become more valuable for employees. </p>
<p>One proposal would allow employees to enforce wage contracts or other arrangements through the Fair Labor Standards Act (FLSA). The FLSA presently requires employers to pay a set minimum wage and a certain amount of overtime and that's it. State laws, such as the Iowa Wage Payment Collection Law (Iowa Code Chapter 91A), are used to enforce any wage issues beyond the minimum the FLSA requires. The FLSA has never been used to enforce compensation arrangement and agreements that exceed the FLSA's mandates. But one proposed change to the FLSA would make the FLSA an enforcement mechanism for all wage and compensation issues, not just minimum wage and overtime:</p>
<p>"In the case of an employment contract or other employment agreement, including a collective bargaining agreement, that specifies that an employer shall compensate [a covered employee] at a rate that is higher than the [minimum wage], the employer shall compensate such employee at the rate specified in such contract or other employment agreement." </p>
<p>This proposed amendment to the FLSA would increase the remedies for Iowa employees who have wage issues with their employer. The FLSA's liquidated damages provision automatically calls for an amount of liquidated damages equal to the amount of unpaid minimum wage or overtime compensation, while the Iowa Wage Payment Collection Law allows for a lesser amount of liquidated damages depending upon how long it takes the employer to pay the disputed wages. Further, the FLSA allows for the possibility of a three-year time limit on wage claims, while any claims under the Iowa Wage Payment Collection Law must be filed within two years of the employer's failure to pay wages. </p>
<p>The other FLSA amendment proposal would noticeably alter the FLSA's enforcement provisions. For example, the current statute of limitations for FLSA claim is two years, or three years if the employee can prove that the employer willfully violated the FLSA. But the enforcement amendments would extend the limitations period to four years, even five years upon proof of a willful FLSA violation. That's an extra several years of FLSA wage violations that employees would be able to make a claim for. </p>
<p>A second major enforcement change would be an increase in the liquidated damages that employees can recover if they establish that their employer willfully violated the FLSA. Right now, willful FLSA violations require employers to pay an additional amount of damages to the employee equal to the amount of FLSA wages owed. The proposed FLSA amendments would make liquidated damages double the amount of unpaid minimum wage or overtime compensation.</p>
Fri, 06 Oct 2017 13:36:00 +0000http://erbelaw.com/blog/posts/is-congress-in-the-early-stages-of-changing-federal-overtime-law
Iowa Court Of Appeals Upholds $70,000 Verdict In Tree Damage Case<p class="text-align-justify">We frequently receive calls from people who are concerned about a neighbor's trees. We discussed potential legal claims regarding trees <a href="http://www.erbelaw.com/blog/posts/your-legal-rights-when-a-neighbor-s-trees-encroach-on-your-property" title="http://www.erbelaw.com/blog/posts/your-legal-rights-when-a-neighbor-s-trees-encroach-on-your-property" target="_blank">here</a> and <a href="http://www.erbelaw.com/blog/posts/possible-liability-issues-regarding-trees" title="http://www.erbelaw.com/blog/posts/possible-liability-issues-regarding-trees" target="_blank">here</a>. We always warn people to be careful when taking any action regarding a neighbor's tree. If you damage or kill that tree, either by cutting limbs or by cutting roots, you could be liable to the neighbor for money damages. You especially cannot trespass on someone else's land to remove or trim a tree.&#160; </p>
<p class="text-align-justify">Both of these issues arose in a recent Iowa Court of Appeals case. The case is a lesson on what can happen when someone illegally removes trees from someone else's land. The case also highlights the importance of accurate knowledge of where property lines lie, including commissioning a survey of necessary, before removing trees. </p>
<p>On September 13, 2017, the Iowa Court of Appeals issued its decision in <em>North v. Van Dyke</em>, a case brought by a landowner regarding trespass and the removal of trees from her land. Douglas Van Dyke hired Heck’s Dozer, Inc. to construct a trail in rural Boone County along a ravine between his property and adjacent land owned by Eunice North. Twenty of North’s trees were removed during the trail’s construction, and a portion of the completed trail encroached upon North’s property.&#160; </p>
<p>North sued Van Dyke and Heck’s Dozer, Inc. for trespass, loss of lateral support, and loss of trees. The jury awarded North damages of $50,000 on the trespass and lateral support claims and $20,100 in treble damages on the loss-of-tree claim. The jury held Van Dyke 75% responsible and Heck 25% responsible.</p>
<p>North’s loss-of-tree claim was premised on Iowa Code section 658.4(2013). That section states: "For willfully injuring any timber, tree, or shrub on the land of another, or in the street or highway in front of another’s cultivated ground, yard, or city lot, or on the public grounds of any city, or any land held by the state for any purpose whatever, the perpetrator shall pay treble damages at the suit of any person entitled to protect or enjoy the property." The jury awarded North $6700 for the loss of trees, which when trebled, resulted in damages of $20,100.</p>
<p>Van Dyke contended that North failed to prove he “willfully” destroyed North’s trees. "Willfully" means an act done wantonly, and without any reasonable excuse. It could also refer to an intentional and deliberate act without regard to the rights of others. The court of appeals ruled that a reasonable juror could have found the willfulness component satisfied or, alternatively, could have found Van Dyke acted without reasonable excuse when he removed North's trees.</p>
<p>North testified at trial that she told Van Dyke that she didn't want him on her land. After the work was completed, North commissioned a survey and learned that the work and tree removal had encroached on her land. Van Dyke did not have the property surveyed before he began work on the trail. Based on North's testimony that she told Van Dyke to stay off her land and Van Dyke's failure to obtain a survey before beginning work, the court of appeals upheld the finding of willfulness and treble damages against Van Dyke. </p>Fri, 22 Sep 2017 11:41:00 +0000http://erbelaw.com/blog/posts/iowa-court-of-appeals-upholds-70-000-verdict-in-tree-damage-case
Can Overtime Paid Even When It's Not Owed Be Used As An Offset Against Improperly Withheld Overtime?<p>Imagine this scenario: An employer pays overtime for for periods it's not required to, but fails to pay overtime for periods when it should. In a claim asserting the employer's failure to pay overtime, can it claim the "bonus" overtime pay as an offset against any overtime that it's ordered to pay? There's currently a difference of opinion among federal courts of appeals on this question.</p>
<p>For example, <em>Smiley v. E.I. DuPont De Nemours &amp; Company</em> was a "donning and doffing case." The employees sued for overtime compensation they claim they earned putting on and removing safety gear and uniforms and performing other activities before and after shifts. They also received three paid thirty-minute breaks per shift. The employer counted those breaks as working time, even though it wasn't legally required to do so. The federal trial court ruled that the employer could offset the unpaid "donning and doffing" time (which probably should've been paid under federal overtime law), with the money that the employees received for paid breaks that the employer wasn't legally obligated to provide.</p>
<p>The trial court was overturned on appeal. The federal court of appeals disapproved the offset argument. It determined that nothing in federal overtime law allows an employer to claim the type of offset the employer sought. Although admitting that federal overtime law doesn't expressly prohibit such offsets, the appellate court still concluded that the employer’s wage practices were contrary to the goals and broad remedial purpose of federal overtime law.</p>
<p>Conversely, federal appellate courts in <em>Barefield v. Village of Winnetka</em> and <em>Avery v. City of Talladega</em> upheld the use of compensation paid for non-work time as a credit against owed overtime compensation. Both cases involved paid meal breaks that were used to offset other unpaid work. The employees weren't entitled to paid meal breaks; thus, to the extent that they were entitled to compensation for other periods that hadn't been paid, the employers were permitted to use the gratuitous paid meal break time as an offset against overtime compensation that they may have failed to pay. The difference between these decisions is that the <em>Smiley </em>decision, issued in 2016, relied on an argument against such offsets made by the United States Department of Labor. That was literally the first time that the Department of Labor had spoken on the offset issue in any manner. </p>
<p>The United States Supreme Court has been asked to review this issue. The concern is that employers within one federal appeals circuit aren't allowed to use gratuitous wage payments as an offset against unpaid overtime liability, yet employers within two other circuits are. That sort of "circuit split" can cause uncertainty for employers who simultaneously operate in federal jurisdictions that allow the offset and those that don't. Of course, employers who operate in none of the federal jurisdictions that have rendered a decision on this question have no idea what the governing law would be in their areas; if they assume that an offset would be allowed, they do so at their own risk until their local federal court of appeals chimes in. &#160; </p>Fri, 08 Sep 2017 06:00:00 +0000http://erbelaw.com/blog/posts/can-overtime-paid-even-when-it-s-not-owed-be-used-as-an-offset-against-improperly-withheld-overtime
Iowa's Qualified Immunity From Private Nuisance Lawsuits For Animal Feeding Operations<p>In 2017 Iowa enacted a law that provides significant protections for animal feeding operations in the area of nuisance law. It's Iowa Code 657.11, entitled "Animal Feeding Operations." It includes in the concept of "animal feeding operation" a broad array of agricultural activities: "[A] lot, yard, corral, building, or other area in which animals are confined and fed and maintained for forty-five days or more in any twelve-month period, and all structures used for the storage of manure from animals in the operation.</p>
<p>Iowa Code 657.11's stated purpose "is to protect animal agricultural producers who manage their operations according to state and federal requirements from the costs of defending nuisance suits, which negatively impact upon Iowa’s competitive economic position and discourage persons from entering into animal agricultural production. This section is intended to promote the expansion of animal agriculture in this state by protecting persons engaged in the care and feeding of animals." In other words, Iowa doesn't want agricultural producers being sued for a nuisance related to dust, noise, odors, or other emanating from their operations unless the operation's being run really irresponsibly.</p>
<p>That stated purpose represents a major departure from Iowa's standard nuisance law. The general rule is that compliance with regulations and laws is not a defense to a nuisance lawsuit. Agricultural producers now enjoy an argument that's usually not available for other types of defendants in a nuisance case.</p>
<p>To advance Iowa Code 657.11's stated policy, it creates a qualified immunity from nuisance suits for animal feeding operations: "An animal feeding operation . . . shall not be found to be a public or private nuisance under this chapter or under principles of common law, and the animal feeding operation shall not be found to interfere with another person’s comfortable use and enjoyment of the person’s life or property under any other cause of action." A nuisance plaintiff can only overcome that immunity and proceed with suit if the plaintiff proves that (1) the agricultural producer has failed to comply with a federal statute or regulation or a state statute or rule that applies to the animal feeding operation or (2) the animal feeding operation unreasonably and for substantial periods of time interferes with the person’s comfortable use and enjoyment of the person’s life or property and the animal feeding operation failed to use existing prudent generally accepted management practices reasonable for the operation.</p>
<p>The qualified immunity provisions are another significant departure from Iowa's usual nuisance laws to the extent that they allow a "state of the art" defense, i.e., an argument that the animal feeding operation uses "existing prudent generally accepted management practices reasonable for the operation." In other types of nuisance claims, the defendant's reasonable care, use of technology, etc. is not a defense. A defendant can normally be found liable for causing a nuisance despite the defendant's best efforts to prevent it. Yet animal feeding operations can escape nuisance liability, even if they're truly causing a nuisance, as long as they can prove that they're doing the best they can to prevent the nuisance. &#160; </p>
<p>Iowa Code 657.11 makes another change to standard nuisance law for animal feeding operations with its provision that the qualified immunity applies "regardless of the established date of operation or expansion of the animal feeding operation." Usually the chronology of events is important in a nuisance case. If the person suing for a nuisance was using the property before the nuisance-causing activity began, that's normally a major advantage for the plaintiff in the case because, in essence, they were their first and have priority. But Iowa Code 657.11 eliminates that advantage by allowing the qualified immunity regardless of whether the complaining landowner had priority of use.</p>Fri, 25 Aug 2017 14:18:00 +0000http://erbelaw.com/blog/posts/iowa-s-qualified-immunity-from-private-nuisance-lawsuits-for-animal-feeding-operations
Challenging Your Residential Real Estate Tax Assessment<p>Note: We've decided to write this blog post because several callers have made us aware of a web article entitled <a href="http://www.nolo.com/legal-encyclopedia/procedures-challenging-your-property-tax-assessment-iowa.html" title="http://www.nolo.com/legal-encyclopedia/procedures-challenging-your-property-tax-assessment-iowa.html" target="_blank">Procedures for Challenging Your Property Tax Assessment in Iowa</a> that offers incorrect information on the procedures and time limits for doing so. Following the procedures in that article may result in the loss of the property owner's appeal rights.</p>
<p>Residential real estate values are reassessed every odd-numbered year for tax purposes. Your real estate's valuation is then used determined the amount of property tax you'll owe over the next two years. Because of the impact of your real estate's valuation on the amount of your property taxes, you may wish to challenge your property's valuation. Here are the basic steps for doing so.&#160; </p>
<p>It's important to follow all these steps within the time required. Missing any steps or any deadlines for acting will cause the forfeiture of your appeal rights for the two-year tax cycle. In most instances, you're not allowed to use an appeal of your current tax assessment to challenge assessments from previous two-year periods.&#160; </p>
<p>You're allowed to challenge your property assessment for five possible reasons:</p>
<ul><li>The assessment is not equitable as compared with assessments of other like property in the taxing district.</li>
<li>The property is assessed for more than authorized by law.</li>
<li>The property is not assessable, is exempt from taxes, or is misclassified.</li>
<li>There is an error in the assessment.</li>
<li>There is fraud in the assessment.</li>
</ul>
<p>You begin the process by filing a protest with your county's board of review. Protests must be filed between April 2 and April 30 of the year of assessment with your local assessor's office. You lose your appeal rights if you don't follow this step or don't file the protest between April 2 and April 30. You have an opportunity to request a hearing before the board of review to present evidence and argument as to the correct valuation for your property. The board of review will issue a written decision of its decision on your protest and the reasons for that decision.</p>
<p>If you're not satisfied with the board of review's decision, you can appeal it to the Iowa Property Assessment Appeal Board ("PAAB"). If the board of review adjourned on or before May 31, your appeal must be filed on or before June 20. If the board of review adjourned after May 31, your appeal must be filed within 20 days of the board of review's adjournment. If the 20th day falls on a Saturday, a Sunday, or a holiday, an appeal will be timely if filed on the next available business day. You lose your appeal rights if you do not file a timely appeal to PAAB.</p>
<p>Your PAAB appeal is a great opportunity. You're allowed to redo the evidence you offered to the board of review and introduce new evidence and arguments. But, because of that, the evidence that you submitted to your county board of review is not necessarily transmitted to PAAB. You have to resubmit that information to PAAB if you wish to use it again.</p>
<p>The PAAB hearing is extremely important. In fact, it's the most important stage of the entire tax assessment appeal process. You have the right to appeal to the district court if you're not satisfied with PAAB's decision, but you're almost always limited on appeal to arguing the evidence you presented to the PAAB during the appeal hearing, including documents and witnesses. PAAB decisions are rarely overturned on appeal. That means you need to get the PAAB appeal hearing right and not leave out any potential evidence or testimony, either from yourself or from third-party witnesses, because if you lose the PAAB appeal you'll likely keep losing. If you lose because you were lacking in evidence, it'll be very unlikely that you'll get to go back before PAAB and have a do-over. </p>
<p>If your PAAB appeal is unsuccessful, you have the right to file a petition for judicial review to challenge the agency's decision. That petition must be filed within twenty days of the postmark of PAAB's decision. District courts are required to be very deferential to PAAB's decisions and only rarely overturn them. That's why it's so important to win your case in front of PAAB, rather than hoping for a miracle through a petition for judicial review. The district court's decision can be appealed to the Iowa Supreme Court.</p>
<p>You have the right to be represented by a lawyer during the tax assessment appeal process. The right time to bring in a lawyer is for the board of review and PAAB appeal hearing to ensure that you get your presentation right, keeping in mind that, if you lose, any appeals of PAAB's appeal decision will very likely be limited to the evidence that was presented during the appeal hearing. Quite honestly, if you lose before PAAB, it's almost too late to decide to hire a lawyer to handle further appeals because a lawyer's best chance to help you is during the board of review and PAAB proceedings.</p>Thu, 10 Aug 2017 08:00:00 +0000http://erbelaw.com/blog/posts/challenging-your-residential-real-estate-tax-assessment
It's Time To Stand Up To Mechanic's Lien Abuse In Residential Construction<p>Iowa's mechanic's lien statute (Iowa Code Chapter 572) was amended effective January 1, 2013. Additional changes became effective July 1, 2017. Both sets of changes were primarily intended to benefit and protect residential homeowners, who were at a disadvantage when working with contractors in the construction trade. The idea was that residential property owners were at a disadvantage because they often didn't know who their builder or general contractor had hired to work on the project as subcontractors or materials suppliers. The result was that many residential owners were paying their builder or general contractor in full, only to later learn that the builder or general contractor didn't pay a subcontractor or materials supplier, which was now demanding payment even though the builder or general contractor was supposed to take care of that using the money paid by the residential owner. &#160; </p>
<p>Several changes were made to Iowa's mechanic's lien law beginning January 1, 2013 in an effort to protect residential owners from encountering such situations. The changes included new notification requirements imposed on builders and general contractors working with residential owners. The failure to comply with either notice requirement is a forfeiture of the right to assert a mechanic's lien against residential property.</p>
<p>First, Iowa Code 572.13(1) mandates that "[a] general contractor who has contracted or will contract with a subcontractor to provide labor or furnish material for the property shall provide the owner with the following owner notice in writing in boldface type of a minimum size of ten points:&#160; Persons or companies furnishing labor or materials for the improvement of real property may enforce a lien upon the improved property if they are not paid for their contributions, even if the parties have no direct contractual relationship with the owner. The mechanics’ notice and lien registry provides a listing of all persons or companies furnishing labor or materials who have posted a lien or who may post a lien upon the improved property." That notice must also contain the internet site address and toll-free telephone number of the mechanics’ notice and lien registry. Iowa Code 572.13(3) expressly states that "[a] general contractor who fails to provide notice pursuant to this section is not entitled to a lien and remedy provided by this chapter."</p>
<p>Second, Iowa Code 572.13A(1) states that "[a] general contractor or owner-builder who has contracted or will contract with a subcontractor to provide labor or furnish material for the property shall post a notice of commencement of work to the mechanics’ notice and lien registry internet site no later than ten days after the commencement of work on the property. A notice of commencement of work is effective only as to any labor, service, equipment, or material furnished to the property subsequent to the posting of the notice of commencement of work." Iowa Code 572.13A(1) goes on to list several items of information that must be included in the notice of commencement of work. Again, Iowa Code 572A.13(4) clearly states that "[a] general contractor who fails to provide notice pursuant to this section is not entitled to a lien and remedy provided by this chapter." </p>
<p>Despite those clear statutory provisions for residential construction, many general contractors don't comply with them, probably because they don't even know that the notice provisions exist. But, notwithstanding the code sections that state that failure to comply with the notice provisions forfeits a contractor's right to a lien, many contractors still persist in asserting a mechanic's lien against the residential property, even after our firm's warned them that they have no right to a lien because of a violation of the notice provisions. Our suspicion is that contractors are persisting in asserting liens they know to be invalid in an effort to make the case more difficult and expensive for the homeowner, particularly when the homeowner has asserted claims against the builder or contractor for defective construction or breach of contract, because now the homeowner has to either fight to get the mechanic's lien off the property or negotiate a settlement with the contractor. </p>
<p>We believe that to be an abusive use of mechanic's liens, especially because the contractor knows that the lien's invalid but asserts it anyways in an effort to back the homeowner into a corner. But residential owners don't need to put up with that because the mechanic's lien statute includes provisions for challenging the lien's validity under Iowa Code 572.24(2): "An action to challenge a mechanic’s lien may be commenced in the district court or small claims court if the amount of the lien is within jurisdictional limits. Any permissible claim or counterclaim meeting subject matter and jurisdictional requirements may be joined with the action. The court shall make written findings regarding the lawful amount and the validity of the mechanic’s lien. In addition to any other appropriate order, the court may enter judgment on a permissibly joined claim or counterclaim. If the court determines that the mechanic’s lien is invalid, valid for a lesser amount, frivolous, fraudulent, forfeited, expired, or for any other reason unenforceable, the clerk of the district court shall submit the ruling to the administrator who shall make a posting to the mechanics’ notice and lien registry internet site regarding the proper amount of the lien or, if warranted, canceling the lien." If the homeowner's successful in challenging the lien, Iowa Code 572.32(2) provides that "the court may award reasonable attorney fees and actual damages. If the court determines that the mechanic’s lien was posted in bad faith or the supporting affidavit was materially false, the court shall award the owner reasonable attorney fees plus an amount not less than five hundred dollars or the amount of the lien, whichever is less." </p>Fri, 28 Jul 2017 06:00:00 +0000http://erbelaw.com/blog/posts/it-s-time-to-stand-up-to-mechanic-s-lien-abuse-in-residential-construction
A Bridge (Over Troubled Waters) Does Not Justify Contempt Punishment <p>On June 30, 2017, the Iowa Supreme Court issued a decision in what has to be one of the more fascinating contempt of court proceedings that Iowa's courts have ever seen. The dispute had its origins in the construction of a railroad bridge in 1872. Over the course of the following 145 years, ownership of the bridge and the lands around it changed hands several times and the bridge was the subject of multiple legal proceedings. It's very rare, even in cases involving land and property, to see a case that stretches back nearly to the beginning of Iowa's statehood. &#160; </p>
<p>The case began with a railroad right-of-way originally owned by the Chicago, Rock Island &amp; Pacific Railroad (CRI&amp;P). In 1872, CRI&amp;P built a bridge to allow the railroad tracks to pass over a stream. At times in the past, a dike turned the creek water under the bridge and across farmland until it drained into a drainage system.</p>
<p>In the 145 years since the bridge was constructed, the creek water has not consistently passed under the bridge and drained to the south. Especially during heavy rains, the creek carries significant quantities of sediment and debris that plug the channel under the bridge, causing water to flood and damage fields north of the bridge. In addition, the dike constructed to direct water under the bridge has repeatedly failed, causing water and debris to move parallel to the bridge, instead of under it, until it eventually drained into the drainage slough. Silt and debris flowing through the creek are deposited in the drainage slough, inhibiting the flow of water into and through that waterway. Over the course of a season or occasionally after a single substantial rain, the silt and debris plug the drainage slough, causing water to flood and damage crops in fields north of the plugs. The local drainage district has repeatedly cleared the plugs and enabled the water to again empty into the slough.</p>
<p>Over the 145-year history of the bridge, it, along with the creek, dike, and surrounding land has been the subject of several legal actions. In 1907, CRI&amp;P closed the channel under the bridge, which had gradually been filling with sediment and debris, forcing the creek water to change course and travel east, parallel to the railroad right-of-way. As a consequence of this change in the channel of the creek, land to the north of the railroad right-of-way occasionally flooded.&#160; </p>
<p>In 1911, CRI&amp;P filed an action against landowners on both sides of the bridge, seeking a declaration that CRI&amp;P was no longer obligated to maintain the flow of water under the bridge because the natural flow of the creek had changed. The courts disagreed with CRI&amp;P and determined that the creek's natural court was under the railroad bridge. CRI&amp;P was ordered to clear the creek bed so that the water would again flow naturally under the bridge.&#160; CRI&amp;P was also required to maintain the creek such that it would no longer be obstructed and would adhere to outs natural channel under the railroad bridge. &#160; </p>
<p>More court action came in 1976. The railroad's dike had again failed, the stream had filled with silt and sand, and flooded neighboring lands. CRI&amp;P was ordered to to stop allowing the creek to flow onto neighboring lands and to reconstruct the collapsed dike so that the water again flowed under the railroad bridge.</p>
<p>Ownership of the railroad right-of-way was assumed by a railway known as Milwaukee Road. CRI&amp;P had begun construction on the dike per the 1977 court order, but the dike was washed out again before it could be completed. In 1984, a court ordered Milwaukee Road to rebuild the dike now that had ownership of the railroad right-of-way. The dike was again repaired, and then failed yet again.</p>
<p>That then brought the case to 2008, at which time the railroad right-of-way was owned by&#160;Dakota, Minnesota &amp; Eastern Railroad (DM&amp;E). At this point,&#160;the dike was still in disrepair and the drainage problem in the vicinity of the bridge had not been solved.&#160; DM&amp;E didn't do anything to address the issues with the dike. </p>
<p>Litigation thus ensued again over the railroad bridge, the stream, and the dike in 2013. This time the drainage district tried to have DM&amp;E held in contempt of court for failing to maintain the dike and otherwise comply with the 1977 court order issued against CRI&amp;P, which now applied to DM&amp;E since it was the current owner of the railroad right-of-way. The issue before the Iowa Supreme Court was whether DM&amp;E could be subject to a court order entered against a different company decades earlier.</p>
<p>The court concluded that DM&amp;E was not subject to the 1977 court order. The court referenced Iowa Code 614.1(6), under which an action founded on a judgment of a court of record must be brought within twenty years. It concluded that the drainage district’s application for order to show cause filed in February 2013 was an action seeking enforcement of the judgment entered in 1977. It was therefore an action subject to the twenty-year statute of limitations on enforcement of judgments under Iowa Code 614.1(6). The twenty-year period commenced when the judgment was entered in 1977. Because the 1977 judgment was not renewed, it expired in 1997, well before the attempt to enforce it against DM&amp;E was commenced. The drainage district's contempt proceeding against DM&amp;E thus failed.</p>Fri, 14 Jul 2017 06:00:00 +0000http://erbelaw.com/blog/posts/a-bridge-over-troubled-waters-does-not-justify-contempt-punishment
Guilt By Association (Or Contract) Under The Americans With Disabilities Act<p>The Americans With Disabilities Act has a little known, and seldom used, section that prohibits employers from participating in contracts or any type of relationship that results in disability discrimination against an employee. The ADA states that disability discrimination includes “participating in a contractual or other arrangement or relationship that has the effect of subjecting a covered entity’s qualified applicant or employee with a disability. . . .” The United States Department of Labor defines the phrase "contractual or other arrangement or relationship" to include a relationship with an employment or referral agency; labor union, including collective bargaining agreements; an organization providing fringe benefits to an employee of the covered entity; or an organization providing training and apprenticeship programs. </p>
<p>This rule applies to an employer, with respect to its own applicants or employees, whether the employer offered the contract or initiated the relationship or whether the employer accepted the contract or acceded to the relationship. The rule's purpose is to ensure that an employer may not do through a contractual or other relationship what it is prohibited from doing directly. In short, the ADA imposes liability not only for an employer’s direct discriminatory standards, but for discrimination carried out via a contractual agreement with a third party. If an employer, via its contract with a third party, has subjected an employee to discrimination prohibited by the ADA, it cannot rest on blind contractual compliance to escape liability for discrimination. </p>
<p> As noted, this issue doesn't come up very often. One example is <em>Cripe v. City of San Jose</em>. San Jose had a policy that categorically restricted the types of positions that officers with certain injuries could hold. The officers argued that the city’s policy violated the ADA. The city contended that its policy was justified by public safety concerns.</p>
<p> The policy in question was the result of a negotiated agreement between the city and the police union. The policy did not permit the city to make any individual assessment as to whether an officer, with or without an accommodation, could perform the essential functions of any job other than the contractually set-aside “modified-duty” positions. Thus, no disabled officer was eligible for any other job assignment within the department.</p>
<p> One of the city’s arguments was that the failure to apply the requirements of the policy to the plaintiffs would require a divergence from the collective bargaining agreement with the police union and that it cannot be required to take any action inconsistent with that agreement. But the court observed that the ADA makes clear that the term “discriminate” includes participating in a contractual or other arrangement or relationship that has the effect of subjecting a covered entity’s qualified applicant or employee with a disability to disability discrimination. The court determined that the city’s contract with the police union had the effect of subjecting the plaintiffs to discrimination by imposing impermissible qualification standards that screen out the class of disabled officers. Thus, the policy was discriminatory and could not survive under the ADA, unless some exception applied.</p>
<p> Likewise, in<em> Hoehn v. International Security Services</em>, the plaintiff claimed that he he was terminated from his position as an armed security guard on the basis of his disability, vision in only one eye. The defendant had a contract with the General Services Administration that granted GSA the right to require the defendant to remove an employee from any GSA properties if it was determined that the individual was unsuitable for security reasons or otherwise unfit to work on GSA property. The plaintiff’s vision impairment caused GSA to exercise its contractual right to insist that he be removed from GSA sites. The defendant subsequently terminated him.</p>
<p>The defendant’s arguments included reference to its contract with GSA. Citing the rule discussed above, the court rejected that argument, stating that “the mere fact that ISSI may have been contractually bound to enforce a GSA mandated contract provision regarding visual acuity and vesting with the GSA Contracting Officer sole authority to deviate from the terms of that provision, does not dispense with the necessity of determining whether Hoehn was a ‘qualified individual with a disability.’ " </p>Fri, 30 Jun 2017 13:03:00 +0000http://erbelaw.com/blog/posts/guilt-by-association-or-contract-under-the-americans-with-disabilities-act
Shooting Down Some Common Employer Overtime Arguments<p>Employers seem to have a never-ending stream of excuses when they're caught failing to pay overtime. They continue to trot out these excuses even though courts more often than not reject them. These excuses are (1) an employer policy that prohibits overtime without authorization; (2) an employer policy that requires the recording of all hours; and (3) the employer's lack of knowledge that the employee was working overtime.</p>
<p>The first two excuses go hand-in-hand and are usually asserted together. The employer will point to its policy that prohibits overtime without prior authorization and argue that the employee's not eligible for overtime because the employer didn't authorize it. That no-overtime policy is usually also found with a policy that requires the reporting of all hours worked. If those reported hours don't show that the employee was working overtime, then the employer will rely on its reporting policy to argue that the employee's failure to record any overtime hours means that any such hours were forfeited and aren't eligible for overtime compensation.&#160; </p>
<p>The courts are usually unimpressed with such arguments. Overtime need not be specifically authorized by the employer for overtime liability to attach. The key inquiry is not whether the overtime work was authorized, but whether the employer was aware that the employee was performing such work. Thus, even if an employer prohibits overtime work, it cannot avoid liability if it knew that the employee was engaged in such work.&#160; </p>
<p>It is the duty of the management to exercise its control and see that the work is not performed if it does not want it to be performed. It cannot sit back and accept the benefits without compensating for them. The mere promulgation of a rule against such work is not enough. Management has the power to enforce the rule and must make every effort to do so. That duty arises even if the employee fails to report the overtime hours. Consequently, an announcement by the employer that no overtime work will be permitted, or that overtime work will not be compensated unless authorized in advance, will not impair the employee’s right to compensation for work which he is actually suffered or permitted to perform.&#160; </p>
<p>The "we didn't know about the employee's overtime" is often laughable and disregarded by the courts. A court need only inquire whether, under the circumstances, the employer knew or through reasonable diligence could have discovered that an employee was working overtime, regardless of whether the employee actually claimed overtime. Constructive knowledge is established if the employer should have known of the overtime. An employee must be compensated for duties before or after scheduled hours if the employer knows or has reason to believe that the employee is continuing to work and the duties are an integral and indispensable part of the employee’s principal work activity. The employer’s knowledge is measured in accordance with its duty to inquire into the conditions prevailing in its business. It is irrelevant whether the employer asked the employee to do the work. Nor does the reason for the employee’s work matter. Employers need not have concurrent knowledge of the employee’s overtime – communication after the work has been completed is sufficient to convey knowledge of an employee’s hours worked.</p>Fri, 16 Jun 2017 20:03:00 +0000http://erbelaw.com/blog/posts/shooting-down-some-common-employer-overtime-arguments
Driver Liability For Merging Accidents<p>One of the trickier types of personal injury and car accident cases we encounter involve lane merges where a traffic lane slowly disappears and joins with a parallel lane. Merging lanes are commonly present on regular surface roads, state highways and interstate freeways, and ramps leading to highways and freeways. Merging lanes can also temporarily appear in areas of road construction.</p>
<p>It's not hard to imagine why accidents can easily occur at points where one lane merges into another. Where there was previously room for two vehicles moving in the same direction, now there's only room for one. The bottleneck caused by merging lanes is prime breeding ground for rear-end collisions.</p>
<p>By far the most common cause of accidents at the point of lane merges are drivers who merge too late with too small of a space between their vehicle and the traffic ahead of and behind them. These are drivers who are either not paying attention or, worse yet, are staying in the merging lane as long as possible in the hopes of racing ahead of the slower-moving traffic in the existing lane that's swallowing the merging lane. Another cause of accidents at this point are drivers in the lane that's receiving the merging traffic, traffic that's moving slower, who don't slow down and hit a car in front of them or slam on their brakes and cause someone to hit them from behind.&#160; </p>
<p>Drivers have to be careful and watch the traffic in front of them, which, particularly in construction zones, will be the first clue that a traffic slowdown or lane merge is ahead, well before any road signs begin appearing. Monitoring traffic conditions is a basic responsibility of all motor vehicle operators. This is especially important for temporary lane merges caused by construction work because drivers who aren't paying attention may not realize until too late that there are fewer lanes than normal in that area of roadway. &#160; &#160; &#160; </p>
<p>Of course, drivers also have to pay attention to road signs, along with traffic conditions. Signs warning of a lane merge will appear before the merge. In constructions zones, warning signs may begin appearing miles before the lane merge and be posted at regular intervals for the next several miles, accompanied by flashing lights and arrows. Not only do the warning signs alert drivers that the merging lane will be disappearing soon, but they're also meant to get drivers to move out of the merging lane before the merge point is reached, thus decreasing the chances of bottleneck accidents. &#160;&#160; &#160; </p>
<p>As I noted, speed and daredevil driving is also a factor. You've all seen this, particularly in constructions zones on highways and freeways. Drivers will barrel ahead in the merging lane for as long as possible to avoid getting stuck in the slower-moving lane receiving the merging traffic, waiting until the last possible moment before leaving the merging lane. That often occurs at the point that the merging lane is o longer really a lane and has dwindled down to a sliver of pavement. Such drivers then try to shoehorn into a small space in traffic, which is difficult enough when trying to parallel park and even more difficult when traffic's moving at 30-50 miles-per-hour. </p>
<p>Untangling the liability for such an accident can be a chore. These cases often involve a lot of fingerpointing and blame-passing. Competing arguments will be made about who was driving too fast, who slammed on their brakes and created a sudden emergency, who wasn't paying attention to traffic or road signs, who waited too long to merge, who didn't allow someone to merge, etc., etc. One thing's for sure -- There's rarely a completely clear liability picture in car accident or personal injury cases involving accidents at lane merges.</p>Fri, 26 May 2017 13:09:00 +0000http://erbelaw.com/blog/posts/driver-liability-for-merging-accidents
Federal Court Rejects Employer's "Hey, It All Worked Out Defense" In Tipped Worker Minimum Wage Case<p>An interesting argument arose recently in the March 7, 2017 United States Court of Appeals decision in <em>Romero v. Top-Tier Colorado. </em>That is another <a href="https://erbelaw.wordpress.com/2012/04/30/treatment-of-tipped-employees-under-minimum-wage-laws/" title="https://erbelaw.wordpress.com/2012/04/30/treatment-of-tipped-employees-under-minimum-wage-laws/" target="_blank">tipped restaurant worker</a> case in which the employees contend that the employer's paying them tipped minimum wage, rather than regular minimum wage, for time they spend on untipped labor. We have worked and are working on several similar cases and the allegation always is that the employer should be paying its employees the regular minimum wage of $7.25 per hour, rather than tipped minimum wage, during periods of time when the employees are engaged in job activities that don't include the opportunity to earn tips.</p>
<p><em>Romero</em> concerned a question that arose because employers are sometimes allowed to include the tips paid by customers as part of the wages received by their tipped employees. Tipped workers receive a lower guaranteed minimum wage (for example, $4.35 per hour under Iowa law and $2.13 per hour under federal law) because it's expected that they'll receive tips from customers as a supplement to the guaranteed tipped minimum wage. Employers are allowed to count customer tips as part of the employees wages in what is often referred to as the "tip credit." As long as the employee's guaranteed minimum wage plus customer tips equals at least $7.25 per hour, the employer's complied with the minimum wage law for tipped employees. If the employee's tips, when added to the guaranteed tipped minimum wage, aren't sufficient to get the employee to $7.25 per hour, the employer pay the employee the additional wages necessary to do so.</p>
<p><em>Romero</em> raised the issue of whether employers are allowed to average an employee's wages, including tips, out over the entire workweek. The employer argued that, regardless of what minimum wage it should've paid its employees during periods of untipped labor, the employees still averaged at least $7.25 per hour when their total guaranteed tipped minimum wage and tips were divided by the number of hours they worked in the week. In other words, potentially illegal minimum wage practices can be overlooked as long as the employer still manages to pay its employees an average of $7.25 per week. </p>
<p>The United States Court of Appeals didn't necessarily disagree with the employer. It instead observed that the issue's more complicated than the employer asserted. That's because not all tips are automatically eligible to be included in the calculation of the employee's wages. In other words, the employer's argument might be correct, but it first has to be determined whether all of each employee's tips can be counted as part of the employee's wages.&#160; &#160;&#160; </p>
<p>The court noted that the "tip credit" only applies to tipped employees. That's important because the employees in <em>Romero</em> alleged that some of the work they performed did not count as "tipped" labor. Thus, in the court's analysis, before deciding how much in wages a tipped&#160; employee earned in a given week, it must first be decided how much of that employee's tips may be counted as wages by the employer. The court's primary concern was that, if the employer's argument was correct and total tips divided by hours worked equaled at least $7.25, then the employer didn't have to pay the employee anything at all, which is clearly not what the minimum wage laws contemplate. </p>Fri, 12 May 2017 15:27:00 +0000http://erbelaw.com/blog/posts/federal-court-rejects-employer-s-hey-it-all-worked-out-defense-in-tipped-worker-minimum-wage-case
The Illegality Of "Blanket Exclusions" Under Iowa And Federal Disability Discrimination Law <p>I suspect that employers run afoul of Iowa and federal disability discrimination law more than any other type of employment discrimination law. That's partly because of the expanded focus on "perceived" or "regarded as" disability discrimination claims. Perceived or regarded as disability claims bring many more employees within the scope of disability discrimination laws than there used to be, thus increasing the number of possible legal violations by employers. But I also think that employers get themselves in trouble because, more than any other type of status that Iowa and federal employment discrimination laws establish, employers have special legal requirements regarding disabled employees or prospective disabled employees.&#160;</p>
<p>An example of that is the requirement of an "individualized assessment" before taking personnel action against a disabled employee, including hiring, firing, and position transfers. Employers cannot make assumptions about disabled employees, regardless of whether such employees come under the "actually disabled" category or are instead "perceived" or "regarded as" disabled. Any employment decisions made because of an employee's disability can only occur after a full review of the employee's individual circumstances, which often includes a medical analysis.</p>
<p>"Blanket exclusions" are a common way for employers to violate Iowa and federal disability discrimination law by making employment decisions without conducting an individual assessment of each disabled employee affected by the employer's policy. A blanket exclusion is an employer's rule, policy, or practice that excludes employees with certain disabilities from certain positions. For example, an employer may have a policy requiring a minimum level of vision for certain positions.&#160; Employees with a disability that affects their vision and fail to meet the employer's minimum vision standards have been adversely affected by the employer's blanket exclusion for people with an eye impairment.&#160; </p>
<p>The civil rights agencies and courts take a hard look at blanket exclusions. The determination of whether or not an employee can perform the essential functions of a particular job must be based upon an individualized assessment of the person’s ability to perform the job safely, and cannot be based simply on a blanket exclusion. The conclusion that a person poses a direct threat to the health or safety of others may not be based on generalizations or stereotypes about the effects of a particular disability; it must be based on an individual assessment. Such an individualized inquiry is essential if the law is to achieve its goal of protecting disabled individuals from discrimination based on prejudice, stereotypes, or unfounded fear. Therefore, courts give blanket exclusions the utmost scrutiny and, as a general rule, discouraged blanket exclusions. &#160; &#160; &#160; </p>
<p>There's one exception to the general rule against blanket exclusions. If an employer is subject to state or federal statutes or regulations that mandate or prohibit certain things among employees (for example, United States Department of Transportation regulations), the employer can legally base blanket exclusions on such statutory or regulatory requirements without committing disability discrimination. At the same time, some employers that are not subject to such statutes or regulations voluntarily adopt those requirements anyways and then try to use the statute or regulation to justify a blanket exclusion. Employers who voluntarily follow statutes or regulations that they're not required to follow and create blanket exclusions for certain disabilities as a result need to have a good reason for doing so because courts often reject an employer's attempt to justify a blanket exclusion on statutes or regulations that the employer's not bound by. &#160; </p>Fri, 28 Apr 2017 12:07:00 +0000http://erbelaw.com/blog/posts/the-illegality-of-blanket-exclusions-under-iowa-and-federal-disability-discrimination-law
State Of Iowa Is Not Liable For Sexual Assault By Sexual Predator<p>On April 14, 2017, the Iowa Supreme Court issued its decision in <em>Estate of Mercedes Gottschalk v. Pomeroy Development and State of Iowa. </em>Mercedes Gottschalk was a resident at Pomeroy Care Center. She was sexually assaulted by another resident, William Cubbage. Mercedes's estate sued the State for negligence in the way that it handled Cubbage. Pomeroy Care Center likewise sued the state in an attempt to have the State share some or all of the responsibility for what happened to Mercedes.&#160; </p>
<p>Before Cubbage became a resident of the Pomeroy Care Center, he'd had a long history of sexual offenses. The State of Iowa had determined Cubbage to be a sexually violent predator and committed him to the custody of the state. He was later released from the State's custody by court order and committed to Pomeroy Care Center, where he assaulted Mercedes Gottschalk. The issues before the Iowa Supreme Court concerned whether the State of Iowa owed Mercedes or Pomeroy Care Center any obligations in releasing Cubbage from the State's control.&#160; </p>
<p>The estate argued that the State of Iowa had a duty to warn Pomeroy Care Center's residents of Cubbage's background before he was placed there and establish safety protocols to protect the residents from Cubbage. In that regard, the court analyzed whether there was a "special relationship" between Pomeroy Care Center's residents and the State that required the State to take steps to safeguard the residents from Cubbage. The court concluded that no such special relationship existed because it was the court system, not the State, that made the decision to release Cubbage from the State's custody. The State thus had no duty to warn Pomeroy Care Center's residents or establish safety protocols because it was not responsible for Cubbage's release from state control, the courts were.</p>
<p>Pomeroy Care Center also sued the State in an effort to spread the blame for what happened to Mercedes. The care center argued, like the estate did, that the State had a duty to warn the residents about the danger Cubbage posed. The care center also contended that the care center acted negligently in discharging Cubbage from state control, that the State acted negligently in performing its role in Cubbage's civil commitment to the Pomeroy Care Center, and that the State acted negligently in failing to supervise and monitor Cubbage . The court rejected those arguments for the same reasons it did when the estate made them because Cubbage's transfer to Pomeroy Care Center was the result of court action, not unilateral action by the State.</p>
<p>This was a tragic situation. It's important to note that only the claims against the State of Iowa were dismissed. The claims against Pomeroy Care Center itself remain. Also noteworthy is that the Iowa Supreme Court was unusually divided in its opinion. Not only did two justices disagree with the decision and file separate dissenting opinions, but even some of the five judges who agreed with the decision filed separate opinions expressing other reasons why the State bore no liability to Mercedes or Pomeroy Care Center.</p>Fri, 14 Apr 2017 14:43:00 +0000http://erbelaw.com/blog/posts/state-of-iowa-is-not-liable-for-sexual-assault-by-sexual-predator
Be Careful When Passing Vehicles On Your Motorcycle<p>Riding a motorcycle requires constant vigilance of your surroundings, especially other vehicle. The common dangers for riders -- vehicles turning in front of them or pulling out in front of them -- are well known. But motorcyclists don't often consider the significant potential for danger when passing other moving vehicles. A mistake that occurs between two four-wheeled vehicles when one's trying to overtake the other may result in a squealing of brakes to avoid a collision and at most a minor fender bender. That same situation can result in serious injuries or death when its a motorcycle that's doing the overtaking and an accident happens, either because the rider has to take evasive action and crashes, or because of an actual collision that throws the rider from the motorcycle. </p>
<p>All of us riders know that there's little we can do to protect ourselves from other drivers' lack of attention, lack of vision, and bad driving habits. It's a roll of the dice any time you mount up. You just hope that today's not the day that your name's included in the news story referencing the driver "who just didn't see the motorcyclist." But you can at least increase your chances of avoiding an unlucky dice roll by taking certain steps, some of which always apply and some of which are special to passing situations.</p>
<p>Most importantly, assume and act like none of the drivers see you. That way you're always prepared when someone inevitably turns or pulls out in front of you or moves into your lane as you're trying to pass them. When I'm passing a vehicle, I expect them to either not look or miss me me when they do and then move into my passing lane or turn into me as I'm passing. That way, I'm always prepared and am pleasantly surprised when I complete my pass without being run off the road. In this regard, don't rely on the nonsense that loud pipes are all you need for people to notice your bike. You don't know for sure that the other driver will hear your bike or be able to pinpoint its location even if the pipes are heard. &#160; </p>
<p>Also, make sure your head lamp's working. Even if you have an older bike and can legally ride without your headlight on, do not under any circumstances do so. You might as well be invisible as far as other drivers are concerned, especially when vehicles, buildings, or the landscape behind you cause you and your bike to blend in with the scenery. That's even worse when trying to pass a vehicle, because that other driver may at most give the rearview mirror and blindspot a quick flick of the eyes before moving over into your passing lane to turn or likewise pass vehicles. The best practice is to always have your high beam on during the day to increase your visibility for other drivers. The high beam also makes you appear closer to the other driver, reducing the "I thought the bike was farther away than it was" issue.&#160; </p>
<p>You need to pick the right time to pass; if the right time hasn't presented itself, then just sit back and putter along until passing conditions are safer. Bad passing conditions include intersections, driveways, turning lanes, blind crests, blind corners, and anything that may restrict vision or cause another vehicle to pull into your path or turn across it. The only time you should be passing a vehicle, particularly on the left on a two-lane road, is when you're on a straight section of road with no or minimal opportunities for cross-traffic or turns and plenty of visible road and terrain ahead.</p>
<p>When you do pass vehicles, do so with some urgency. You need to get out of the other driver's blindspot and complete your pass as quickly as possible. This is not the time to slowly creep past the other vehicle.&#160; </p>
<p>This is also not the time to enjoy the scenery, especially if you're passing on the left on a two-lane road. You obviously have to watch for oncoming traffic in the lane you're using to pass. You also have to watch the lane next to your passing lane for anything that may cause the driver next to you to also suddenly decide to move into the passing lane while you're still next to the other vehicle. And you of course have to monitor the other vehicle and driver for any signs that the driver may be accidentally or intentionally moving into your passing lane.</p>Fri, 31 Mar 2017 14:11:00 +0000http://erbelaw.com/blog/posts/be-careful-when-passing-vehicles-on-your-motorcycle
Independent Contractors Aren't Covered Under Federal Overtime Law<p>Not all workers are eligible for overtime compensation. There must be an employment relationship between the worker and the potential employer for the Fair Labor Standard Act's overtime provisions to apply. Independent contractors, as opposed to employees, lack the requisite employment relationship with the potential employer. They're ineligible for overtime regardless of what they do or how much they work in a given week.</p>
<p>The Fair Labor Standards Act defines “employ” as including to “suffer or permit to work.” That represents the broadest definition of employment under the law because it covers work that the employer directs or allows to take place. Workers who are economically dependent on the business of the employer, regardless of skill level, are considered to be employees, and most workers are employees. Conversely, independent contractors are workers with economic independence who are in business for themselves. </p>
<p>Courts will usually evaluate several factors in determining whether a worker's an "employee" or an "independent contractor":</p>
<ul><li><strong>The extent to which the work performed is an integral part of the employer’s business</strong>:&#160; If the work performed by a worker is integral to the employer’s business, it is more likely that the worker is economically dependent on the employer and less likely that the worker is in business for himself or herself. Work is integral to the employer’s business if it is a part of its production process or if it is a service that the employer is in business to provide.</li>
<li><strong>Whether the worker’s managerial skills affect his or her opportunity for profit and loss</strong>:&#160; This factor has two components. First, whether the worker has managerial responsibilities. Second, does the worker use those managerial skills to independently hire other workers and purchase equipment. If both factors are present, then the worker may be an independent contractor because the worker's not as economically dependent on the employer.</li>
<li><strong>The relative investments in facilities and equipment by the worker and the employer</strong>:&#160; This is related to the previous factor. The worker must make some investment compared to the employer’s investment (and bear some risk for a loss) in order for there to be an indication that the workers is an independent contractor in business for himself or herself. If a worker’s business investment compares favorably enough to the employer’s that they appear to be sharing risk of loss, this factor indicates that the worker may be an independent contractor.</li>
<li><strong>The worker’s skill and initiative</strong>:&#160; To indicate possible independent contractor status, the worker’s skills should demonstrate that he or she exercises independent business judgment. It is whether these workers take initiative to operate as independent businesses, as opposed to being economically dependent, that suggests independent contractor status.</li>
<li><strong>The permanency of the worker’s relationship with the employer</strong>:&#160; Permanency or indefiniteness in the worker’s relationship with the employer suggests that the worker is an employee, as opposed to an independent contractor.&#160; But a worker’s lack of a permanent relationship with the employer does not necessarily suggest independent contractor status because the impermanent relationship may be due to industry-specific factors, or the fact that an employer routinely uses staffing agencies. </li>
<li><strong>The nature and degree of control by the employer</strong>:&#160; Analysis of this factor includes who sets pay amounts and work hours and who determines how the work is performed, as well as whether the worker is free to work for others and hire helpers. An independent contractor <br />generally works free from control by the employer.</li>
</ul>
<p>The United States Supreme Court has ruled that there is no single rule or test for determining whether an individual is an employee or independent contractor for purposes of the FLSA. The Court has held that the totality of the working relationship is determinative, meaning that all facts relevant to the relationship between the worker and the employer must be considered. While the factors considered can vary, and while no one set of factors is exclusive, the above factors are generally considered when determining whether an employment relationship exists under the FLSA. </p>
<p>In recent years, the United States Department of Labor has made the issue of independent contractors versus employees a focal point of its investigations. The Department has stated that "[t[he misclassification of employees as independent contractors presents one of the most serious problems facing affected workers, employers and the entire economy. Misclassified employees often are denied access to critical benefits and protections they are entitled to by law, such as the minimum wage, overtime compensation, family and medical leave, unemployment insurance, and safe workplaces. Employee misclassification generates substantial losses to the federal government and state governments in the form of lower tax revenues, as well as to state unemployment insurance and workers’ compensation funds."</p>
<p>As part of the Department's misclassification initiative, on July 15, 2015 it issued an <a href="https://www.dol.gov/whd/workers/Misclassification/AI-2015_1.htm" title="https://www.dol.gov/whd/workers/Misclassification/AI-2015_1.htm" target="_blank">Administrator's Interpretation</a> regarding the difference between independent contractors and employees. The Administrator's conclusion was that "most workers are employees under the FLSA’s broad definitions." The Department's efforts go beyond Federal overtime law -- The Department's also working with the IRS and many states to combat employee misclassification and to ensure that workers get the wages, benefits, and protections to which they are entitled under all the federal and state laws that are only applicable if there's an employment relationship between the worker and the potential employer.</p>Fri, 17 Mar 2017 12:37:00 +0000http://erbelaw.com/blog/posts/independent-contractors-aren-t-covered-under-federal-overtime-law
Surprise! You May Not Be A Covered Employee Under Federal Overtime Law<p>Not all businesses are covered by federal overtime law and not all workers are protected under that law. In the next two posts we'll discuss an issue under federal overtime law that doesn't receive a lot of attention -- Whether the worker claiming a right to overtime is even protected under federal overtime law. That is an important question in Iowa because Iowa, like most states, doesn't have a state overtime statute. Therefore, if federal overtime law doesn't apply to an Iowa worker, then that worker has no right to overtime at all.</p>
<p>Two primary questions can arise on this issue. First, does the nature of the worker's employer, or the worker's individual job duties, even subject to the employer to federal overtime law? Second, if overtime law does cover the employer or the specific worker, is there an employment relationship between the business and the worker, or is the worker an independent contractor? Overtime law doesn't cover independent contractors. We'll discuss that in our next post.</p>
<p>Federal overtime law, which is part of the Fair Labor Standards Act ("FLSA"), may apply to a business in one of two possible ways (or both methods simultaneously). One of the two coverage tests must be met or the worker has no right to overtime. The two possible FLSA overtime coverages are “enterprise coverage” and “individual coverage.”&#160; </p>
<p>FLSA enterprise coverage exists for businesses that satisfy three requirements. First, the business or its employees must be engaged in interstate commerce.&#160; Second, the business must have two or more employees. Third, the business’s gross annual revenue must be $500,000 or more. If a business satisfies both requirements for enterprise coverage, then all employees working for the business are covered under the FLSA's overtime provisions, regardless of their job duties or whether they ever engage in interstate commerce. </p>
<p>Caveat:&#160; The FLSA's overtime provisions automatically apply to certain employers, without regard to the employer's annual gross revenue. Such employer include schools, hospitals, and nursing homes or other residential care facilities as well as all governmental entities at all levels of government.</p>
<p>Even if an employer is not subject to overtime law under enterprise coverage, the FLSA's overtime provisions may still protect the employee under the theory of "individual coverage." Employees are covered under overtime law in each week that they are individually engaged in interstate commerce, produce goods for commerce, or work in activities that are closely related and directly essential to the production of goods for commerce. Individual coverage is based on the nature of the employee's work activities, rather than on the business, employer, or industry as a whole. At the same time, the connection of the employer's business to interstate commerce may also be evidence of the employee's involvement in interstate commerce.</p>
<p>The United States Supreme Court has stated that to determine whether an employee is engaged in interstate commerce, the analysis "is not whether an employee's activities affect or directly relate to interstate commerce but whether they are actually in or so closely related to the movement of the commerce as to be a part of it." Neither the FLSA's overtime provisions nor the courts have imposed any minimum percentage, volume, or amount of activity in interstate commerce that must occur before an employee's covered. Even minor engagement with interstate commerce is sufficient to trigger individual coverage if that employee's involvement with interstate commerce is regular and recurring.</p>
<p>Individual coverage is a factually-specific inquiry, so it's impossible to provide a general list of occupations that always do or always do not create individual coverage under the FLSA's overtime provisions.&#160; But there are three broad classes of employees whose work may bring them within individual coverage: (1) employees whose work is related to the actual movement of interstate commerce (for example, truck drivers who cross state lines); (2) employees whose work requires them to regularly use the channels of interstate commerce (for example, interstate mail, interstate telephone calls or facsimiles, interstate banking or credit card transactions, internet use across state lines, or the direct purchase of products that are ordered and delivered from out-of-state sellers or distributors); or (3) employees whose work is related to the instrumentalities of interstate commerce (for example, an employee who helps manufacture trucks to be used in interstate shipping). </p>Fri, 03 Mar 2017 06:00:00 +0000http://erbelaw.com/blog/posts/surprise-you-may-not-be-a-covered-employee-under-federal-overtime-law
City Liability For Private Nuisance Caused By Sewer Backups<p>On February 3, 2017, the Iowa Court of Appeals issued a decision expanding the potential liability of cities for sewer backups. This has always been a complicated, difficult claim to make, as we discussed <a href="https://erbelaw.wordpress.com/2012/08/09/liability-of-cities-for-sewer-backups/" title="https://erbelaw.wordpress.com/2012/08/09/liability-of-cities-for-sewer-backups/" target="_blank">here</a>. But in <em>Wilma Kellogg v. City of Albia,</em> the Iowa Court of Appeals confirmed the use of an alternate theory of liability against cities for sewer backups: private nuisance.</p>
<p>The storm sewer at issue in this case was constructed by the City of Albia in 1972 as part of a paving project. Kellogg’s home was built in <br />1983, and Kellogg purchased the home in 2008. A drainage pipe runs under Kellogg’s land and drains into the storm sewer located on the western edge of the property. Kellogg reported the property first flooded in 2009, resulting in ponding in the yard and water coming into the basement. Kellogg estimated the basement has flooded at least eight or nine times between 2009 and 2015. In 2010, 2012, 2013, and 2014, Kellogg spoke to city representatives and asked if anything could be done to stop the flooding. Kellogg claimed each time the city told her it would look into the flooding but took no steps to follow up or address the problem. Kellogg stated the property last flooded on July 7, 2015.</p>
<p>One of Kellog's claims was that the city was liable for maintaining a nuisance on her property in the form of the storm sewer water that was flooding her property. The city argued that it was immune becase Kellogg’s nuisance action arose out of a claim of negligent design or construction or failure to upgrade, improve, or alter the storm sewer, and therefore cannot be brought against the city for the reasons we discussed in this <a href="https://erbelaw.wordpress.com/2012/08/09/liability-of-cities-for-sewer-backups/" title="https://erbelaw.wordpress.com/2012/08/09/liability-of-cities-for-sewer-backups/" target="_blank">post</a>. Kellogg contended that the city's immunity section did not apply to nuisance claims, and even if the immunity was applicable to nuisance claims in general, the city's immunity did not apply to her particular nuisance claim. </p>
<p>The court agreed with the city that the immunity would apply to nuisance claims based upon or arising out of a claim of negligent design or <br />construction or failure to upgrade, improve, or alter a public improvement. The issue thus became whether Kellogg's claim was based on one of those theories of fault. If it was, then the city was immune from Kellogg's nuisance claim. Kellogg argued that, even if the city's immunity applied to nuisance claims, her action was based upon the creation of a condition and not upon an act or omission of the city responsible for creating the condition.</p>
<p>The court of appeals noted that Iowa law permits claims against municipalities for the failure to repair and maintain existing sewer systems. “Repair” or “maintain,” as opposed to “upgrade,” denotes a restoration to former design standards to enable the existing facility to operate adequately. Thus, neither the purpose nor the literal terms of cities' sewer system immunity prohibit a claim based upon the failure to repair, maintain, or operate a storm sewer system. Consequently, a nuisance claim can escape the city's immunity from suit application of section if the claim relates to the repair, maintenance, or operation of a storm sewer system such that it creates a dangerous condition and is an unreasonable interference with an owner’s use and enjoyment of the property.&#160; </p>
<p>Therefore, the court of appeals said, if Kellogg can prove that a nuisance was created or was being maintained by the city's operation of the sewer system without regard to design or specifications defects, the city may not be immune from suit. In this regard, the court observed that Kellogg experienced flooding on her property on at least eight or nine occasions over the course of seven years. That included reoccurring <br />flooding near electrical appliances, standing water, and resulting mold. That evidence was sufficient for Kellogg to have an opportunity to prove her nuisance claim against the city at trial. </p>Fri, 17 Feb 2017 12:14:00 +0000http://erbelaw.com/blog/posts/city-liability-for-private-nuisance-caused-by-sewer-backups
Employer's Threat Of Criminal Charges For $5 Theft Leads To Extortion Lawsuit By Employee<p>In a rather unusual case that involved a claim for money damages for extortion against an employer, on January 25, 2017 the Iowa Court of Appeals issued a decision in <em>Louise A. Nath v. Pamida Stores. </em>Louise Nathworked for Shopko. Pamida Stores owns the Shopko store chain.</p>
<p>Nath was accused of stealing a bottle of water while she was working. Shopko management told Nath that she owed Shopko $4.99 for the full case of water, as individual bottles were not readily salable at Shopko. During the meeting, Shopko management produced a document entitled “Teammate Consent to Restitution,” which Nath was asked to sign. Nath claims she was badgered after she repeatedly denied wrongdoing, and management told her that the police would be called and Nath would be prosecuted if she didn't admit wrongdoing and sign the reimbursement consent. Because Nath believed that she would not be prosecuted if she paid the $4.99, she gave Simpson $5 and signed the document.</p>
<p>The story might have ended there, but Nath's payment of restitution to Shopko didn't fully satisfy the store. A week later, Nath’s employment was terminated on the basis of theft. Follow-up letters were sent by Shopko threatening civil proceedings to recover its costs of investigating and recovering the cost of the bottle of water and again mentioning the possibility of criminal charges. There is no indication any criminal charge was filed. &#160; </p>
<p>Nath responded to Shopko's threats by suing Shopko. She filed a lawsuit alleging that Shopko had obtained the $5 and the restitution document by threatening a criminal charge—or, in other words, by extortion. Nath sought money damages for lost wages, pain and suffering, punitive damages for having been falsely accused of theft, reimbursement of the $5 she paid Shopko, attorney fees in this action, and expenses incurred in her efforts to obtain her unemployment benefits. Shopko denied that it had requested that Nath pay $5 and sign the restitution document in exchange for not filing a theft charge. </p>
<p>The trial court dismissed Nath's extortion claim because it concluded that Nath couldn't prove that she had agreed to pay $5 and sign the restitution document in response to threats of criminal charges. On appeal, the Court of Appeals observed that extortion can form the basis for a claim for money damages under Iowa law and that the important issue was whether Nath had proof of a threat: "In this case the critical issue is whether there is a material dispute of fact as to whether Shopko threatened to accuse Nath of a public offense. There is no dispute that Shopko received something of value, even though it was of limited value, if in fact a threat was made." The court of appeals determined that there was a material dispute of fact as to the existence of a threat adequate to support a civil money damages claim for extortion.</p>
<p>Another issue on appeal was whether Nath could recover emotional distress damages if she could prove that Shopko committed extortion. The court of appeals ruled that she could. Shopko argued that the exclusive remedy for Nath's alleged emotional distress was through Iowa's Workers Compensation Act. The court of appeals disagreed.</p>Fri, 03 Feb 2017 14:11:00 +0000http://erbelaw.com/blog/posts/employer-s-threat-of-criminal-charges-for-5-theft-leads-to-extortion-lawsuit-by-employee
Iowa Court Of Appeals Issues Reminder About Home Insurance Coverage For Sewer Backups<p>In past blog posts <a href="http://www.erbelaw.com/blog/posts/warning-your-property-insurance-probably-does-not-automatically-cover-flooding-caused-by-sump-pump-failure" title="http://www.erbelaw.com/blog/posts/warning-your-property-insurance-probably-does-not-automatically-cover-flooding-caused-by-sump-pump-failure" target="_blank">here</a> and <a href="http://www.erbelaw.com/blog/posts/iowa-court-of-appeals-issues-warning-about-insurance-coverage-for-flood-events" title="http://www.erbelaw.com/blog/posts/iowa-court-of-appeals-issues-warning-about-insurance-coverage-for-flood-events" target="_blank">here</a>, I've discussed the fact that standard insurance policies don't cover water intrusion caused by sewer backups or sump pump failures. Without paying for special coverage, homeowners whose properties are damaged by water because of either type of event will usually have to pay entirely out of pocket to repair any water damage. On January 11, 2017, the Iowa Court of Appeals issued a decision rejecting claims by a homeowner who went to great lengths to obtain coverage for sewer backup damages even though his insurance policy didn't include such coverage.</p>
<p>Carl Budney purchased insurance MemberSelect Insurance Company. Budny's insurance policy stated that it didn't cover damage caused by water that entered through household sewers, drains, or sump pump systems. He chose not to buy extra "Sewer, Drain and Sump Water Backup" coverage that would've applied to such events.</p>
<p>In November 2015, sewage backed up into Budny’s basement, causing water damage. He reported the damage to his insurance agent, Marty Lee, on November 19.&#160; According to Budny, Lee (or Lee’s staff) told Budny the loss was covered. Lee denied making such a representation.&#160; Budny hired ServPro to clean and restore the basement.&#160; According to Budny, he hired ServPro based on Lee’s representation. MemberSelect denied Budny's claim because he hadn't purchased the extra coverage for things like sewer backups.</p>
<p>Budny contended that MemberSelect waived any policy defenses when Lee told Budny the claim was covered. The court rejected that argument. Even if the court assumed that Lee or a member of Lee's staff made such a statement, Budny could not prevail because Lee lacked the authority to waive the clear dictates of the policy, including the provision stating, “[n]o change or waiver may be effected in this policy except by endorsement issued by us."</p>
<p>The court also noted that under Iowa law, “the doctrine of waiver or estoppel cannot be successfully invoked to create a liability for benefits not contracted for at all.” Budny’s claim failed because the policy specifically excluded coverage of the claim. A waiver argument cannot create liability for coverage not part of the policy.</p>
<p>The court further disagreed with Budney's assertion that fairness and equity dictated that he be provided coverage because he relied on his insurance agent's statement that coverage existed and consequently hired ServPro. Budney was seeking coverage that he hadn't paid for. The court wasn't persuaded that Budney acted to his detriment in hiring ServPro because he would've had to have the basement cleaned regardless of whether he had insurance coverage. The court also wasn't sure that it was inequitable to deny the insurance coverage; since Budney hadn't paid for sewer backup coverage, it might be just as or more inequitable to require his insurer to provide coverage that he hadn't paid for after he had chosen to risk going forward without the sewer backup coverage.</p>
<p>Given all that, Budney's claim for insurance bad faith also failed. An insurer may be liable for bad faith if it denies a claim without reasonable basis for doing so and knows that it doesn't have a reasonable basis. A reasonable basis exists for denial of policy benefits if the insured’s claim is fairly debatable. A claim is "fairly debatable" when it is open to dispute on any logical basis. If reasonable minds can differ on the <br />coverage, then the claim is "fairly debatable." MemberSelect did not commit insurance bad faith because it had a reasonable basis for denying Budney's sewer backup claim -- The claim was specifically excluded by the policy and Budney didn't pay for extra sewer backup coverage.</p>Tue, 17 Jan 2017 12:36:00 +0000http://erbelaw.com/blog/posts/iowa-court-of-appeals-issues-reminder-about-home-insurance-coverage-for-sewer-backups
Iowa Court Of Appeals Issues Dram Shop Decision Focused On Whether A Bar "Sold" The Alcohol In Question<p>On December 21, 2016, the Iowa Court of Appeals issued an interesting decision under Iowa's dram shop law in <em>Michelle Gorden v. Mitchell Enterprises, L.L.C</em>. The fight was over whether the bar targeted by the lawsuit, "Cheers," had "sold" alcohol to the person who ended up assaulting the plaintiff who filed the lawsuit. That issue arose because the person doing the assaulting, Timothy Mitchell, owned the bar and didn't pay for the alcoholic beverages he drank there. The plaintiff, Michelle Gorden, tried everything she could to bring the case within Iowa's dram shop law, but ultimately failed.</p>
<p>First, a quick review of Iowa's dram shop statute, Iowa Code 123.92. The Dram Shop Act provides for liability against places like bars in certain instances:&#160; "Any person who is injured . . . by an intoxicated person . . . has a&#160; right of action for all damages . . . against any licensee or permittee . . . who sold and served any beer, wine, or intoxicating liquor to the intoxicated person when the licensee or permittee knew or should have known the person was intoxicated, or who sold to and served the person to a point where the licensee or permittee knew or should have known the person would become intoxicated." In short, Iowa’s dramshop statute provides a remedy against a licensee or permittee for injuries sustained as a result of the sale and service of alcohol to an intoxicated person. As the statute's language indicates, before dramshop liability may be imposed upon a permittee or a licensee, a plaintiff must prove, at a minimum, that an intoxicated person was both "sold" and "served" intoxicating liquor.</p>
<p>There was no dispute that Mitchell had been "served" alcohol at Cheers. The issue was whether that alcohol had been "sold" to him by his bar, as required to trigger application of Iowa's Dram Shop Act. Gorden conceded that Mitchell hadn't paid money for the alcohol. Instead, she argued several ways in which the provision of alcohol to Mitchell at his bar was the functional equivalent of a sale, including sale by inference, sale by prepayment, sale by barter, and sale by indirect payment. The court rejected each of those arguments.</p>
<p>The sale-by-inference theory allows plaintiffs in dram shop evidence to rely on circumstantial evidence to try to create an inference that the establishment at issue sold alcoholic beverages to the person who caused the incident that later led to the plaintiff's suit. That inference is usually applied when either the server of the alcohol or the person consuming it cannot be identified. A plaintiff need not produce the actual server or servers of the alcohol in order to prove a dramshop claim. A plaintiff may meet the “sold and served” requirement with proof that an establishment where alcohol is sold generally holds itself out as a place where persons are “served” in the ordinary sense of the word, i.e., one providing premises where orders are taken, patrons are waited on, and drinks are supplied in open containers. The court found the sale by inference theory inapplicable because everyone knew who had served the alcohol and who had consumed it and it was undisputed that Mitchell didn't pay for the alcohol. Those facts thus took Gorden's case outside the situation that the sale by inference cases were intended to cover.</p>
<p>Gorden also contended that Mitchell did pay for the alcohol in the sense that his business paid for it to be in the bar that he owned. The court didn't like that argument either. It said that the issue wasn't whether Mitchell had paid for the alcohol that was in his bar and served to his customers, but whether the bar had in turn sold that alcohol to Mitchell just like it did to his other customers.</p>
<p>Gordon further argued that there was a sale of alcohol from Mitchell's bar to Mitchell because he traded his labor at the bar for the alcohol. The court decided that there was insufficient evidence that Mitchell was receiving the alcohol from his bar as part of a bargain-for exchange of services. Therefore, the alcohol that Mitchell's bar sold him was gratuitous and not any type of compensation for his work at the bar.</p>
<p>Another argument made by Gorden was that Mitchell indirectly paid for the alcohol because, by receiving the alcohol without paying for it, he was reducing the bar's profits, which only he benefited from as the sole owner. The court's problem with this argument was that Mitchell's bar received no benefit from such a transaction, regardless of how it affected Mitchell as the bar's only owner. Under Iowa's Dram Shop Act, the establishment in question must receive some benefit from the purported "sale" (whatever nature that sale might take), or there's no dramshop claim.</p>Fri, 23 Dec 2016 06:00:00 +0000http://erbelaw.com/blog/posts/iowa-court-of-appeals-issues-dram-shop-decision-focused-on-whether-a-bar-sold-the-alcohol-in-question
What To Do If You Have To Make A Fire Claim Under Your Property Insurance Policy<p>Your property insurance on your home covers many types of losses. One such loss is fire damage or destruction. That can be a nightmare scenario, followed by the hassle of dealing with your insurer, perhaps while temporarily or permanent displaced from the home. Here are some tips on handling what can often be a bewildering time for many people. There are many other things that should be done and tips that should be followed, but these are some of the major things that we've encountered in our insurance dispute cases.</p>
<p>If you had to evacuate the home, particularly as the fire was raging, you may have left behind standard necessities such as toiletries or clothes. Your insurance policy will cover some or all of the cost to replace such items, but that won't do you much good in the immediate term. Therefore, you should ask your insurer for an advance against the claim you'll eventually file; in essence, you're essentially borrowing against your future insurance payout.&#160; </p>
<p>Property insurance policies always require that homeowners minimize ("mitigate") additional damage to the property after the event that gives rise to the claim. That's because damage can continue to occur to the structure even after an event, like a fire or tornado, is over. A fire can leave a house damaged and exposed to the elements and vandals. If you don't take steps to secure the house from further damage from such things, your insurance company may not cover that additional damage on the grounds that you've failed to mitigate the damages. Quite often, the insurer will later reimburse the costs of undertaking such mitigation steps. &#160; </p>
<p>Make sure to promptly file your property damage claim. The longer it takes to file the claim, the longer it'll take to get paid under it, and that'll be your fault, not the insurer's. Likewise, be sure to promptly, accurately, and completely submit any proof of loss claim forms the insurer demands. Beyond the obvious delays that the homeowner causes by not promptly making a claim and completing paperwork, my experience has been that insurers can also view such conduct as suspicious, which leads to my next tip.</p>
<p>Be very careful if your insurer starts suggesting that the fire is suspicious and that it's investigating the cause and origin of the fire. Insurers don't cover intentionally set, as opposed to accidental, fires. An insurer that's suspicious about a fire will usually hire a fire expert to analyze the fire scene and try to determine the cause and origin of the fire. If that comes up, you'll have to think carefully about whether to hire your own fire expert. Insureds sometimes have to make that decision before they know the conclusions of the insurer's fire expert because the fire inspection may alter or destroy important aspects of the scene, thus making it difficult or impossible for your own expert to conduct a similar analysis if necessary in the face of the insurer's conclusion that the fire was the result of arson. For that reason, there are sometimes two fire experts, one for the insurer and one for the insured, simultaneously inspecting the scene so that both have an opportunity for a full and complete inspection before any destruction or modification of the fire scene. &#160;&#160; </p>
<p>Finally, don't let your insurance company push you around. You have a policy contract with the insurer and you pay the premiums, so your insurer owes you many duties and obligations. The insurer will usually try to close the fire claim as quickly as it can before you discover additional losses caused by the fire. Therefore, take your time to ensure and be confident that you've included everything in the claim that needs to be included before accepting final payment from the insured. Your insurer has no authority to "close" its claims file and force you to end your claim as long as no policy time limits for the claim have expired. </p>Fri, 09 Dec 2016 06:00:00 +0000http://erbelaw.com/blog/posts/what-to-do-if-you-have-to-make-a-fire-claim-under-your-property-insurance-policy
Iowa Court Of Appeals Issues Nonsensical Wrongful Termination Decision<p>On November 23, 2016, the Iowa Court of Appeals issued a rather odd decision in a wrongful termination case, <em>Karin Bjorseth v. Iowa Newspaper Association. </em>The case involved a claim for wrongful termination in retaliation for an employee contacting a state agency to determine whether an employer would violate Iowa's Wage Payment Collection Law if the employer proceeded in a certain manner. The employer never followed through on what the employee believed would be a wage violation. The issue in <em>Bjorseth</em> was whether the employee was still protected from retaliation even though the employer never actually committed a wage violation.</p>
<p>Karin Bjorseth worked as an account executive for the Iowa Newspaper Association ("INA"). After exhausting her personal leave, Bjorseth asked her supervisor if she could take a day off.&#160; She was informed that the equivalent of eight hours of pay would be subtracted from her paycheck. Bjorseth contacted someone at the state to determine whether INA could take this action. She was told the company could not deduct anything from her paycheck. Bjorseth shared this information with her supervisor. Bjorseth did not take the time off and no amount was ever deducted from her wages. INA later terminated Bjorseth’s employment based on poor work performance.</p>
<p>Bjorseth then sued INA. She alleged wrongful termination in retaliation for contacting the state to inquire about her wage rights and for reporting the state's information to INA. Under Iowa law, it's illegal for employers to terminate or discipline employees in retaliation for asserting their rights under Iowa's Wage Payment Collection Law. </p>
<p>Up to that point, <em>Bjorseth</em> was simply a garden variety wrongful termination case. Either Bjorseth was fired in retaliation for her efforts to determine her wage rights or she wasn't. But things got strange when the judges began considering whether the fact that INA never actually withheld any of Bjorseth's wages somehow eliminated her protection from retaliation. As the court put it, the question was “whether an employee contesting a proposed reduction to their wages — without any wages actually being withheld — is afforded protection against retaliatory discharge. . . .” The court ruled that there was no such protection for fully compensated employees. </p>
<p><em>Bjorseth</em> is a surprising decision because the court failed to differentiate between two types of situations in which an employee may assert wage retaliation even though no wages are actually due. It's one thing to refuse protection from retaliation to employees who raise a wage issue when no wages are due and the employer hasn't stated an intention to violate the wage law. Employees shouldn't be allowed to just fabricate a wage issue and then claim that they enjoy protected status as a result.&#160; </p>
<p>It's something else entirely to apply that principle to an employee who raises a wage issue in response to an employer's stated wage intentions that would clearly be illegal under Iowa's Wage Payment Collection Law. Employees should have the absolute right to inquire about or challenge an employer's wage practices when there's a legitimate reason for doing so. They should be protected from retaliation for doing so even if the employer doesn't follow-through on the proposed illegal wage practice. Otherwise, under the <em>Bjorseth </em>court's analysis, an employer can avoid any potential retaliation issues simply by canceling the proposed illegal wage practice after the employee complains and then firing the employee anyways.&#160; </p>
<p>Under <em>Bjorseth</em>, the employee would have no protection from retaliation because the employer didn't actually violate the wage law thanks to the employee's efforts to prevent that happening. In other words, <em>Bjorseth </em>opens the door to the penalization of employees who successfully hold off potential employer wage violations by virtue of the fact that their success in doing so means that they haven't been illegally denied wages and thus have no protection from retaliation. That can't possibly be what the Iowa Legislature and Iowa's courts intended when they deemed it illegal for employers to retaliate against employees for raising a wage concern. &#160; </p>Fri, 02 Dec 2016 06:00:00 +0000http://erbelaw.com/blog/posts/iowa-court-of-appeals-issues-nonsensical-wrongful-termination-decision
What Happens To Unused Vacation Time At The End Of The Year?<p>Research shows that Americans don't always use all of their allotted vacation time each year. The impact that has on work/life balance, employee health, employee productivity, and those sorts of things are not for our law firm to analyze. But there's a legal issue implicated by the incomplete use of vacation time that's never part of the discussion -- What happens to that unused vacation time? Is it forfeited if not used?&#160; The answer, at least under Iowa law, is that it depends.</p>
<p>Let's start with Iowa's statutory definition of wages. Iowa's Wage Payment Collection Law, Iowa Code Chapter 91A, specifically states that "wages" includes "[v]acation, holiday, sick leave, and severance payments which are due an employee under an agreement with the employer or under a policy of the employer." That's important because designating something as "wages" makes it sacrosanct under Iowa law and triggers Iowa Code Chapter 91A's protections. Iowa Code Chapter 91A is a remedial statute. It's meant to facilitate the public policy of allowing employees to collect wages owed to them by their employers. Iowa Code Chapter 91A is liberally construed in favor of employees.</p>
<p>So now that we've established that vacation time is considered wages that receives the generous protections of Iowa's Wage Payment Collection Law, how does that impact the legal treatment of unused vacation time at the end of the year? With the exception of public employees, this question's never been considered by Iowa's appellate courts. The answer would seem to turn on whether the employer has a policy stating that unused vacation pay is forfeited at the end of the year. &#160;&#160; </p>
<p>Courts from other states have ruled that vacation pay is a type of deferred compensation for the employee's labor in that it is considered a form of wages earned along with traditional wages but whose actual use is delayed until a later point. As deferred compensation, the right to use or be paid for unused vacation pay vests as the labor is tendered and cannot be forfeited once vested. Under that theory, which Iowa has yet to address, the forfeiture of unused vacation time is illegal once that vacation has been earned and is vested. Instead, the employee has a right to save that vested vacation time and use it at a later date, even if that date comes after the end of the year in which the vacation is earned. </p>
<p>At the same time, some of those courts from other states add that the employee's rights to use vested vacation time are subject to employer policies that unused vacation time is forfeited at a certain point. The policies must be explicit and employees must have advance notice of them so that they have an opportunity to use their vacation time before it's forfeited. Such policies are legal because, while vacation time is considered wages, it's not given the same priority as traditional monetary wages, is not legally required, and can be taken away by employers in some instances even after it's been earned.</p>
<p>Because Iowa conditions the status of vacation pay as wages on whether the vacation pay is due under a policy of the employer, an Iowa court presented with this issue would probably adopt the theories presented by other courts regarding the vested status of vacation time once it's earned but would also review whether the employer has a "use it or lose it" vacation policy. If the employer does have such a policy, and the employee had advance notice of that policy, then the employee will be determined to have forfeited any unused vacation time at the end of the year. But if the employer lacks such a policy, or the employee didn't have proper notice of the policy, then any attempted forfeiture of the employee's earned vacation time at the end of the year wouldn't be legal. &#160; &#160;&#160; </p>
<p>An interesting question, one that doesn't seem to have been addressed by any court in the country, concerns a situation in which an employer prohibits an employee from using all of that employee's accrued annual vacation and that vacation is then at the end of the year forfeited under the employer's vacation policy. Employers always have the right to control the manner in which employee vacation time is used. But if an employer prohibits the full use of an employee's earned vacation, which is then forfeited per the employer's policy, that is arguably a wage violation because vacation time is considered wages and prohibiting the use of such wages and then taking them away is probably illegal.</p>Fri, 18 Nov 2016 06:00:00 +0000http://erbelaw.com/blog/posts/what-happens-to-unused-vacation-time-at-the-end-of-the-year
Restaurant Servers In Illinois Lose Minimum Wage Case<p>I've previously written about the proper way to pay tipped employees under minimum wage law:&#160; https://erbelaw.wordpress.com/2012/04/30/treatment-of-tipped-employees-under-minimum-wage-laws/. Our firm has filed several class actions alleging that local restaurant operations were not correctly paying tipped servers under state and federal minimum wage statutes. This issue recently arose in a federal case out of Illinois, <em>Schaefer v. Walker Brothers Enterprises</em>, in which the restaurant workers unsuccessfully argued that their employer was violating Illinois and federal minimum wage requirements.&#160; </p>
<p>The claims in <em>Schaefer</em>, and in our firm's own similar cases, came about because of the "tip credit" rule for tipped workers. Under that rule, tipped workers need only receive a certain guaranteed minimum wage ($2.90 under federal law, $4.35 under Iowa law), which combined with their tips must equal at least $7.25 per hour. In other words, the employer receives a credit towards employees' wages through the tips that customers provide. If the guaranteed minimum wage plus customer tips doesn't equal $7.25, the employer must pay an additional amount of wages sufficient to get the employee to $7.25.</p>
<p>All of that sounds easy in theory, but then becomes complicated because most tipped employees engage in what could be called "nontipped" labor during their shifts. Examples of nontipped labor include cleaning, preparation, and maintenance. So, how are tipped workers supposed to be compensated during the periods that they engage in nontipped labor -- tipped minimum wage plus tips, or regular $7.25 minimum wage? Well, the United States Department of Labor has an answer to that question; it's that answer that generates lawsuits, primarily against restaurant operations, over whether the employer's properly handling its tipped employees from a minimum wage standpoint.</p>
<p>The Department of Labor has a regulation that distinguishes between dual jobs and "related duties" that may be performed by a tipped employee without requiring the employer to pay the full $7.25 wage: "In some situations an employee is employed in a dual job, as for example, where a maintenance man in a hotel also serves as a waiter. In such a situation the employee, if he customarily and regularly receives at least $30 a month in tips for his work as a waiter, is a tipped employee only with respect to his employment as a waiter. He is employed in two occupations, and no tip credit can be taken for his hours of employment in his occupation of maintenance man. Such a situation is distinguishable from that of a waitress who spends part of her time cleaning and setting tables, toasting bread, making coffee and occasionally washing dishes or glasses. It is likewise distinguishable from the counterman who also prepares his own short orders or who, as part of a group of countermen, takes a turn as a short order cook for the group. Such related duties in an occupation that is a tipped occupation need not by themselves be directed toward producing tips." </p>
<p>In short, if an employee really has "dual jobs," one tip producing and one not, the employer must pay regular $7.25 minimum wage for the time the employee spends on work that doesn't produce tips. Conversely, if the employee's nontipped work is merely related to the tipped work, and doesn't constitute a separate, dual job by itself, then the employer can pay tipped minimum wage for all of the employee's working time. A similar rule applies to Iowa's minimum wage law.</p>
<p>You can see how that mishmash of a rule, which can be read different ways depending upon which side of the case you're on, generates litigation concerning minimum wage law as it applies to tipped workers. The issue is then complicated by the U.S. Department of Labor's Field Operations Handbook, which explains the method by which the government will evaluate the federal "dual jobs" rule. The handbook notes that the dual jobs rule "permits the taking of the tip credit for time spent in duties related to the tipped occupation, even though such duties are not by themselves directed toward producing tips (i.e. maintenance and preparatory or closing activities). For example a waiter/waitress, who spends some time cleaning and setting tables, making coffee, and occasionally washing dishes or glasses may continue to be engaged in a tipped occupation even though these duties are not tip producing, provided such duties are incidental to the regular duties of the server (waiter/waitress) and are generally assigned to the servers. However, where the facts indicate that specific employees are routinely assigned to maintenance, or that tipped employees spend a substantial amount of time (in excess of 20 percent) performing general preparation work or maintenance, no tip credit may be taken for the time spent in such duties."</p>
<p>The dual jobs rule and the federal handbook interpreting it lead to at least two common questions in these cases: (1) which of the employee's duties are related to the employee's tipped work, such that they don't count towards the 20% threshold and (2) to the extent the employee performs nontipped labor, does that amount to more than 20% of the employee's working time? Tipped worker/minimum wage cases generally rise or fall depending upon the resolution of one or both of those issues. Thus, for example, the <em>Schaefer</em> employees lost because the court rejected their argument that all of their duties but actually serving diners constituted nontipped labor and applied to the 20% nontipped labor threshold. There were some admittedly nontipped duties, but they didn't exceed 20% of the employees' time.&#160; The <em>Schaefer</em> case consequently was a failure.</p>Fri, 21 Oct 2016 13:01:00 +0000http://erbelaw.com/blog/posts/restaurant-servers-in-illinois-lose-minimum-wage-case
Railroad Liability For Train/Motor Vehicle Collisions At Railroad Crossings<p>Railroad crossings are inherently dangerous places.&#160; Severe injuries, even death, can result when a train hits a motor vehicle at a railroad crossing.&#160; Railroads are often sued for such train crossing accidents.</p>
<p>The primary claim against a railroad in a crossing accident will concern the signage and control devices at the crossing. Iowa law only mandates one type of sign at a railroad crossing – The “cross buck” sign that states “RAILROAD CROSSING.” That’s all that’s required. A railroad that fails to place such a sign at a railroad crossing is considered automatically negligent in any motor vehicle accidents that occur at the crossing. </p>
<p>A railroad may be, but isn’t necessarily, negligent if it decides not to do more than erect the “RAILROAD CROSSING” sign. A railroad can be required to do more, and can be negligent for failing to do so, if the crossing is deemed “extrahazardous” or “ultrahazardous.” In a civil lawsuit arising from a railroad crossing accident, the jury will usually be told that “[u]nless a railroad crossing is extrahazardous, all that is required as a warning to travelers are signs and sounding the train horn and bell. In deciding whether the crossing has been proved to be extrahazardous, you may consider unusual conditions like heavy traffic, anything that would interfere with visibility, and similar circumstances. If a crossing is extrahazardous, and the railroad knows or reasonably should know of the danger, the railroad must have either electronic flashing signals or a flagman there to warn travelers.” </p>
<p>As noted in the above quote, another area of liability for railroads in crossing accident cases is the train’s signaling. Trains’ signals are horns and bells. In most instances, a train is required to sound its horn one thousand feet before a railroad crossing is reached. The train’s bell must then be rung continuously until the train is through the crossing. A railroad is automatically negligent for a crossing accident if the train operator fails to sound the horn when required or fails to continuously ring the bell when required. </p>
<p>Some other issues that can arise in a crossing accident, but that aren’t necessarily limited to crossings, include the train’s speed, the train's lighting, and the condition of the track.&#160; Railroads are required to exercise ordinary care as to the speed of their trains. An argument in some railroad crossing cases is that the train was moving too fast. Trains must also have a very bright light on the lead car. And railroads must make sure that the track is in good repair so that vehicles can safely cross it and so that there are no views obstructed by vegetation or other objects. Obstructed views can be a basis for railroad liability in crossing accident cases.</p>
<p>Finally, the conduct of train operators, other than sounding necessary warnings and the speed of the train, can also lead to railroad liability for a crossing accident. Train operators cannot just blindly barrel down the track no matter how much they’re sounding the horn and bell and no matter what kind of warnings and signals are at each crossing. Train operators have an obligation to keep a proper lookout when the train is moving. A train operator’s failure to do so can create liability for negligence against the railroad.</p>
<p>This is just a broad summary of the ways in which a railroad can be liable for a crossing collision. The questions can be a little more complicated and often require expert testimony to answer. Each railroad crossing accident case presents its own unique set of facts that generate a substantial investigation to determine all the possible bases of liability against the railroad.</p>Fri, 07 Oct 2016 14:07:00 +0000http://erbelaw.com/blog/posts/railroad-liability-for-train-motor-vehicle-collisions-at-railroad-crossings
An FLMA Leave Request Is The Same As A Request For A Workplace Disability Accomodation Request, Or Is It?<p>The Family and Medical Leave Act and Americans with Disabilities Act intersect in many ways. That’s because employees who are injured or ill may need both time off, which is frequently covered by the FMLA, and may also need work accommodations, which are governed by the ADA. One issue that’s arisen, and that’s about to be ruled on for the first time by a federal appeals court, is whether a request for FMLA leave can also serve as a request for a reasonable accommodation under the ADA. This is an important question because, while many employees are now familiar with the concept of time off through the FMLA, not all know about the possibility of requesting a work accommodation as a corollary to FMLA time.</p>
<p>The case at issue is Capps v. Mondelez Global. Frederick Capps suffered from avascular necrosis, a degenerative bone disease. Because of that disease, Capps had both of his hips replaced. He was certified for FMLA leave following that procedure, and was continuously certified approximately every six months for intermittent FMLA leave for his condition until his termination in 2014. Mondelez fired him because it believed that he had improperly used a FMLA leave day after his arrest for drunk driving.</p>
<p>Capps brought suit after he was fired. One of his allegations was that Mondelez failed to accommodate his disability (avascular necrosis) by granting him time off work. But the trial court ruled that, because Capps never specifically sought an accommodation for his disability, he could not later sue for failure to provide such an accommodation. The court rejected Capps’s argument that his requests for FMLA leave also simultaneously served as requests for a reasonable disability accommodation and dismissed Capps’s ADA claim.</p>
<p>Capps then appealed. That appeal’s currently pending. It has attracted a lot of attention concerning the issue of whether an FMLA request also serves as an ADA accommodation request in the absence of a specific request for an accommodation. It doesn’t appear that any federal court has ever addressed this exact issue. There’s a plenty of law to the effect that medical leave can be a reasonable disability accommodation; what’s missing is any case that considered the question of whether an FMLA request is the same as a request for a disability accommodation. </p>
<p>The Equal Employment Opportunity Commission maintains that an FMLA request also counts as a request for a disability accommodation. That of course is contrary to the employer’s position and the district court decision in Capps. This is more than an issue of semantics for employees who don’t specifically request a disability accommodation. Not all employees and employers are covered by the FMLA. An employee’s who’s determined to be ineligible for FMLA for any reason, and who doesn’t also specifically ask for a disability accommodation, would have no ADA accommodation rights if the Capps decision stands. Further, the rights to reinstatement at the conclusion of leave are different under the FMLA compared to the ADA. The FMLA only guarantees reinstatement to a comparable position. Conversely, the ADA requires reinstatement to the employee’s exact previous position. </p>Fri, 23 Sep 2016 11:15:00 +0000http://erbelaw.com/blog/posts/an-flma-leave-request-is-the-same-as-a-request-for-a-workplace-disability-accomodation-request-or-is-it
Removal Of An Executor Or Administrator Of An Estate<p>When a person dies, an estate may be opened to handle the disposition of the deceased's money, property, and other assets. Oftentimes. such dispositions are done in accordance with the person's will. If the person doesn't have a will, then Iowa's probate code determines how the person's estate is distributed.</p>
<p>The estate proceedings are managed by an executor (if the person has a will and named someone as executor) or an administrator (if the person didn't name an executor). The executor or administrator is subject to the supervision and control of the probate court. Part of the probate court's control includes the discretion to remove an executor or administrator for various reasons. That can be done on the court's own initiative, but proceedings to remove an executor or administrator are usually begun by someone who's not happy with the way the executor or administrator is managing the estate. </p>
<p>Iowa Code 633.65 provides that a court may remove executors or administrators of an estate if they cease meeting the statutory qualifications for serving as an executor or administrator, have mismanaged the estate, have failed to perform any duty imposed by law or by any lawful order of court, or cease to be an Iowa resident. Some of the statutory qualifications for serving as an executor or administrator include being an adult, being competent, being suitable, and being an Iowa resident, unless an Iowa resident also serves as executor or administrator or the court grants permission for a nonresident to serve alone in that capacity. The courts have explained and defined those statutory terms over the decades that Iowa's probate code has been in effect.</p>
<p>Each of these case are decided upon there own unique facts, and probate courts have tremendous discretion in deciding whether to remove an executor or administrator, but here are some points culled from the cases that can cause a probate court to remove an administrator or executor:</p>
<ul><li>Failure to render true and accurate accounting of estate assets.</li>
<li>Failure to treat all beneficiaries of an estate fairly and impartially.</li>
<li>Using the position of executor or administrator for personal advantage or profit.</li>
<li>Taking actions without the probate court's permission when such permission was required.</li>
<li>Unwarranted hostility between the executor or administrator and the beneficiaries.</li>
<li>Failing to exercise reasonable care in the management of the estate.</li>
<li>A conflict of interest between the personal interests of the executor or administrator and the interests of the estate or the beneficiaries.</li>
<li>Failure to make distribution's in accordance with the deceased's testamentary instructions.</li>
<li>Litigation between the executor or administrator and the beneficiaries, such as a will contest.</li>
<li>Past poor administration of other estates, trusts, or similar situations in which the person had assumed a fiduciary role similar to an executor or administrator.</li>
<li>As a general matter, courts can consider the character, integrity, soundness of judgment, and general capacity of the executor or administrator and the special conditions of the estate in determining whether removal is appropriate.</li>
</ul>
<p>Conduct sufficient to remove an administrator or executor can occur before the person assumes that position. Further, the conduct does not have to relate to estate or probate or any such matters. It can be anything that reflects on the suitability of the person to serve as executor or administrator. Criminal or civil liability need not be proved in order for the court to remove the person.</p>Fri, 09 Sep 2016 12:05:00 +0000http://erbelaw.com/blog/posts/removal-of-an-executor-or-administrator-of-an-estate
Employees Can be Considered An Exempt Employee For Overtime Purposes Even If They Don't Receive The Compensation They're Promised<p>There are many "exemptions" to federal overtime law. "Exempt" employees are not entitled to overtime no matter how many hours they work a week. Different exemptions have different requirements. Some exemptions require that potentially exempt employees receive a certain level of compensation in order to be considered exempt. &#160; </p>
<p>Whether an employees meets any necessary compensation requirements is rarely a disputed issue in overtime cases. Employers almost always pay employees a sufficient level of compensation to meet any compensation thresholds for an overtime exemption. But the employee's compensation does become an issue on rare occasions.&#160; </p>
<p>One such occasion is when the employer doesn't actually pay the employee the compensation that was promised, i.e., the very compensation that the employer's using to satisfy any compensation thresholds for any of the overtime exemptions. Is the potential to make the minimum required compensation sufficient, even if that potential isn't realized? Or does the employer actually have to pay the promised compensation in order to receive the benefit of the asserted overtime exemption?</p>
<p>Only a few courts have considered this question, most recently in the June 14, 2016 United States Court of Appeals decision in <em>Pioch v. IBEX Engineering Services, Inc. </em>Todd Pioch worked for IBEX Engineering Services as a computer software and hardware engineer. At the end of his employment he was paid $85.40 per hour. Mr. Pioch was considered an exempt employee under the "computer exemption." That exemption does not require overtime for any computer employee who makes at least $27.63 per hour. </p>
<p>Mr. Pioch eventually resigned from IBEX. IBEX withheld Mr. Pioch's final three weeks of pay because it believed that he'd been improperly collecting per diem payments. That caused Mr. Pioch to sue for, among other things, a minimum wage for his final three weeks of work. His theory was that, although IBEX promised him $27.63 per hour, it didn't actually pay him that, or anything, for his final three weeks of employment. Consequently, he maintained, IBEX forfeited the computer exemption during the three-week period when it paid him nothing and it owed him over $13,000 in unpaid wages.</p>
<p>The Court of Appeals disagreed with Mr. Pioch. The court stated the issue as "whether an employee—who is paid by the hour and who is generally exempt from the FLSA under the . . . computer employee exemption—can be considered non-exempt during a three-week period for which his employer withheld a final paycheck."&#160; The court answered that question in the negative: "Mr. Pioch has failed to provide us with a compelling reason to hold that his exempt status under the FLSA terminated during the three-week period that IBEX did not pay him. The FLSA, after all, is not a vehicle for litigating breach of contract disputes between employers and employees." The court believed that IBEX's failure to pay Mr. Pioch for his final three weeks of employment did not affect his status as an exempt employee under the computer exemption, although the situation could give rise to a breach of contract claim outside of federal overtime law. In short, the court ruled that "an hourly computer employee's exempt status under § 213(a)(17) does not evaporate simply because the employer withholds a final paycheck." </p>Fri, 26 Aug 2016 20:41:00 +0000http://erbelaw.com/blog/posts/employees-can-be-considered-an-exempt-employee-for-overtime-purposes-even-if-they-don-t-receive-the-compensation-they-re-promised
A Further Discussion Of The Potential Consequences Involved In Violating A Noncompete Agreement<p>In past posts I've discussed the lackadaisical attitude that a lot of people seem to have towards noncompete agreements. I've noted that that's a dangerous attitude because, contrary to common belief, noncompete agreements are very enforceable in Iowa and judges usually do so. But I haven't spent much time summarizing the potential consequences of violating a noncompete agreement. The consequences can be greater than people realize.</p>
<p>Employers will often begin a noncompete battle by sending a "cease and desist" letter to former employees that they believe are violating a noncompete. That letter is frequently from a lawyer for the former employer. Usually the letter simply demands that employees stop what they're doing that violates the noncompete agreement. Occasionally the letter includes a demand for monetary compensation from the employee in addition to cessation of the conduct that violates the noncompete agreement. Employees can do what they want in response to such a letter, including ignore it, but if they don't fully comply with the letter the employer always has the option of filing suit.</p>
<p>The next step after a cease and desist letter (or the first step if the employer decides to skip the cease and desist letter and go straight to court against the former employee), is court action against the former employee. That lawsuit will always include include a claim for injunctive relief against the former employee. An injunction is a court order commanding the former employee to stop any activities that violate the noncompete agreement. Injunctions are very common in noncompete cases.</p>
<p>Employers may also seek money damages against the former employee for violating the noncompete agreement. Those damages may be determined in different ways. If the former employer lost a customer to the former employee because the employee was competing against the former employer in violation of the noncompete agreement, the employer can seek the lost profits incurred by losing to the business to the employee who wasn't supposed to be competing. Another money damages possibility is liquidated damages. Those come in different forms; one common liquidated damages provisions requires the former employee to pay a set amount of money to the former employer for each breach of the noncompete agreement, regardless of whether the employer's actually lost customers because of the employee's unlawful competition. &#160;&#160; </p>
<p>The document that a noncompete agreement appears in frequently includes an attorney fee provision that allows the employer to recover attorney fees and litigation expenses if the employer successfully sues the employee for breach of the noncompete agreement. That's extra money that the court will add on to the employer's recovery at the end of the case if the employer wins it. In a knockdown, dragout court fight over a noncompete agreement, the employer's attorney fees can exceed $100,000, so this is something that employees need to think very carefully about choosing to violate a noncompete agreement.</p>
<p>Of course, those are just the legal consequences to an employee for violating a noncompete agreement. A violation can have real world consequences too. In particular, if a former employee's started a competing business and has to shut it down because of a noncompete agreement, that person loses any money that went into the business and will have to lay off employees.</p>
<p>Finally, it's worth observing that former employees aren't the only ones who can get in trouble if a noncompete's violated. So can that person's current employer. If the current employer knows about the noncompete agreement and employs that person anyways, thus helping the violation of the noncompete agreement with the former employer, the new employer's probably committing tortious interference with contract (the noncompete agreement between the employee and the employee's former employer). A successful claim for interference with contract by the former employer against the new employer exposes the new employer to a money judgment for compensatory damages and possible even punitive damages. That's why the current employer often receives a cease and desist letter too and a warning that continued employment of that person will be considered tortious interference with contract.&#160; </p>Fri, 12 Aug 2016 13:52:00 +0000http://erbelaw.com/blog/posts/a-further-discussion-of-the-potential-consequences-involved-in-violating-a-noncompete-agreement
Iowa's Status As A Right To Work State Probably Doesn't Mean What You Think It Means<p>Iowa's status as a "right to work" state with a "right to work" law can be an unfortunate description unless people understand what "right to work" refers to. "Right to work" laws concern union membership, nothing more. Iowa's right to work statute, Iowa Code 731.1, merely states: "It is declared to be the policy of the state of Iowa that no person within its boundaries shall be deprived of the right to work at the person’s chosen occupation for any employer because of membership in, affiliation with, withdrawal or expulsion from, or refusal to join, any labor union, organization, or association, and any contract which contravenes this policy is illegal and void."&#160; </p>
<p>In other words, it's illegal for employers to discriminate against an employee because of the employee's choice to join or not join a union. That's all Iowa Code Chapter 731, Iowa's right to work law, covers. It has nothing else to do with any aspect of employment relationships in Iowa. But Chapter 731 description as a "right to work" law can cause problems for employees who misunderstand the law. At a minimum, such misunderstandings can cause employees to believe that their employment rights are greater than they actually are. But in the worst case, a misunderstanding of the effect of Iowa's right to work law can cause employee's to make business decisions that later get them into trouble.</p>
<p>One situation in which the misunderstanding of "right to work" shows up is employment terminations. Iowa's right to work law is not a general guarantee of a job or of continued employment in a job. There is no Iowa law that guarantees someone employment or continued employment, certainly not Iowa Code Chapter 731.&#160; </p>
<p>Rather, Iowa's right to work law is like many other employment laws in Iowa -- There are certain things, such as union membership or the lack thereof, that employers are prohibited from considering when making employment decisions. But the right to work law doesn't take precedence over Iowa's general principle of at-will employment. Regardless of Iowa's status as a right to work state, employers can always fire employees at any time without warning for any lawful reason or for no reason at all, no matter how unfair that termination may be. So when employees are fired and lose their job and income, that's not a violation of Iowa's right to work law unless the termination had something to do with a union. &#160; </p>
<p>Now, that first type of misunderstanding isn't that big of a deal. At most, it creates disappointment or unrealized expectations when people learn after being fired that Iowa's status as an at-will employment state is more important than its status as a right to work state and that in most instances employers can legally fire employees in Iowa without legal consequences, other than perhaps an unemployment benefits claim. No, the real danger is when former employees assume that Iowa's right to work law invalidates their noncompete agreement. That's when a lot of people find themselves in for a rude awakening. </p>
<p>Iowa's right to work law has no impact on the validity of noncompete agreements. Under Iowa law, noncompete agreements are generally valid, enforceable, and upheld by the courts. Iowa Code Chapter 731 has nothing to do with the analysis of whether a noncompete agreement is valid and enforceable. In fact, Iowa Code Chapter 731, which has existed since 1947, has never been mentioned in any Iowa appellate case involving a noncompete agreement.</p>
<p>Unfortunately, people sometimes mistakenly believe that Iowa's right to work law prohibits and invalidates noncompete agreements. That misapprehension can cause a former employee governed by a noncompete agreement to make a bad decision to start a competing business in violation of the noncompete agreement under the mistaken assumption that there's no need to worry about the noncompete agreement. But once that bell's rung, it can be difficult to unring it without costing the former employee money. The employee may have to shutter the competing business, thus perhaps losing any money that's been invested in it. The former employer could also sue for violation of the noncompete agreement and seek injunctive relief against the former employee. Then the former employee's facing the prospect of financial expenditures for attorney fees and perhaps paying money damages as well.&#160; &#160;&#160; &#160;&#160; </p>Mon, 25 Jul 2016 06:00:00 +0000http://erbelaw.com/blog/posts/iowa-s-status-as-a-right-to-work-state-probably-doesn-t-mean-what-you-think-it-means
Claims For Tortious Interference With Inheritance<p>Since 1978 Iowa's recognized a claim known as "tortious interference with inheritance." This claim arises in situations when someone believes that he or she was unlawfully cut out of an inheritance that he or she had expected. If that person can prove that someone illegally interfered with the expected inheritance, compensatory and punitive damages are recoverable.</p>
<p>In general, a person wishing to proceed under an interference with inheritance theory must first challenge the will or trust through traditional probate proceedings, unless for some reason no such proceedings are unavailable or inadequate. Some courts have also suggested that an interference with inheritance claim isn't available at all if methods exist to contest the will or trust in probate court. In such situations, some courts hold that probate court is the person's only remedy, regardless of whether the person is successful in probate court. </p>
<p>Most states that recognize tortious or intentional interference with inheritance claims identify the following required elements for such claims: (1) the plaintiff had an expectancy with which the defendant interfered; (2) the interference was tortious; (3) reasonable certainty exists that, but for the defendant’s tortious interference, the expectancy would have been fulfilled; and (4) injury or damages.&#160; </p>
<p>The first element, expectancy, can be difficult to prove in the absence of an earlier will or trust that had benefited the plaintiff and was later changed. A draft will or trust or other written evidence of testamentary intent may also suffice to establish the necessary expectancy.&#160; </p>
<p>The second element, tortious interference, is concerned with the defendant's state of mind. It is not enough for the plaintiff to show that the defendant intended to interfere with an inheritance. The plaintiff must also demonstrate that the defendant's interference was wrongful in some manner. Common types of wrongful interference with an inheritance include duress, fraud, defamation, tortious abuse of a fiduciary duty, forgery, suppression, or alteration.</p>
<p>Compensatory damages for interference with an inheritance often include the value of the property the plaintiff would've received had it not been for the defendant's tortious interference. Emotional distress damages are also recoverable. Punitive damages may also be awarded in rare cases. If the plaintiff had previously challenged the will or trust in probate court, and then also proves that the defendant tortiously interfered with the will or trust, the plaintiff's attorney fees in probate court may be recoverable in the later tortious interference action.&#160; </p>
<p>Like any other tortious interference case, proving tortious interference with an inheritance expectancy is extremely difficult. Unless an earlier will or trust document is available to prove that at one point the plaintiff had an expectation of gaining something from the decedent, it may be an uphill battle for the plaintiff to prove that he or she had any recognizable expectation that the defendant could even interfere with. And even if a legitimate expectation can be established, the plaintiff then has to prove not only that the defendant interfered with the will or trust, but that such interference was wrongful in some manner. Not all interference with a will or trust reaching the level of unlawfulness required to establish a claim for tortious interference with an inheritance expectancy. In short, anyone considering a tortious interference with inheritance claim needs to carefully think about how those elements will be proved.</p>Sun, 17 Jul 2016 20:14:00 +0000http://erbelaw.com/blog/posts/claims-for-tortious-interference-with-inheritance
U.S. Supreme Court Is Not Impressed With Some Of The U.S. Department Of Labor's Overtime Rules <p>On June 20, 2016, the United States Supreme Court gave the U.S. Department of Labor (DOL) a lecture about proper rulemaking in the case of <em>Encino Motorcars v. Hector Navarro</em>. At issue was whether service advisors at automobile dealerships could be considered exempt employees for purposes of federal overtime law. But instead of answering that question, the Supreme Court called out the DOL for bad rulemaking and sent the case back to the lower appeals court for a fresh look.</p>
<p>The plaintiffs in <em>Encino Motorcars </em>were service advisors at an automobile dealership. Service advisors interact with customers and sell them services for their vehicles. A service advisor's duties may include meeting customers; listening to their concerns about their cars; suggesting repair and maintenance services; selling new accessories or replacement parts; recording service orders; following up with customers as the services are performed (for instance, if new problems are discovered); and explaining the repair and maintenance work when customers return for their vehicles. </p>
<p>The law in question in <em>Encino Motorcars </em>was a section of federal overtime law that exempts certain employees of automobile dealerships from the requirements for overtime pay. Specifically, federal law does not require overtime pay for "any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements." The contention in the case was whether service advisors come within the scope of that overtime exemption. &#160; </p>
<p>The dispute in <em>Encino Motorcars </em>was complicated by the DOL's changing position on whether service advisors are included within the scope of the dealership exemption. The DOL originally stated in 1970 that service advisors were outside that exemption's scope. Then in 1978 the DOL unofficially changed its position and advised that service advisors were exempt employees. In 2008 it proposed to make that position official by promulgating a new overtime regulation that would specifically include service advisors within the scope of the dealership exemption. But when that new overtime rule was published in 2011, without explanation the DOL eliminated any reference to service advisors as exempt employees and returned full circle to its original 1970 position that service advisors were not included within the dealership exemption.&#160; &#160; &#160; </p>
<p>The Supreme Court didn't like the DOL's unexplained shift in position regarding the exempt status of service advisors:&#160; "One of the basic procedural requirements of administrative rulemaking is that an agency must give adequate reasons for its decisions. The agency 'must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made. . . .' That requirement is satisfied when the agency's explanation is clear enough that its 'path may reasonably be discerned. . . .'&#160; But where the agency has failed to provide even that minimal level of analysis, its action is arbitrary and capricious and so cannot carry the force of law." The court noted that agencies are free to change their existing policies as long as they provide a reasoned explanation for the change.</p>
<p>Applying those principles to the DOL overtime rule at issue in <em>Encino Motorcars, </em>the court determined that the DOL had not adequately explained its shift in positions. The court stated that "[t]his lack of reasoned explication for a regulation that is inconsistent with the Department's longstanding earlier position results in a rule that cannot carry the force of law." Because the lower court had given the DOL's rule the force of law when it shouldn't have, the Supreme Court sent the case back to the lower court for a new review.</p>Fri, 08 Jul 2016 20:01:00 +0000http://erbelaw.com/blog/posts/u-s-supreme-court-is-not-impressed-with-some-of-the-u-s-department-of-labor-s-overtime-rules
Iowa Supreme Court Issues Decision Regarding Effect Of Local Ordinances In Premises Liability Cases<p>On June 24, 2016, the Iowa Supreme Court issued an important decision in <em>Winger v. CM Holdings </em>that concerns the impact of municipal code violations in premises liability/personal injury claims involving rental properties. In <em>Winger</em>, the plaintiffs' daughter was called after she fell off of an apartment balcony. Her parents sued the apartment building's owner. They alleged that the balcony's railings were too short and violated Des Moines city code for rental properties.&#160; </p>
<p>One of the issues on appeal was whether violation of a municipal code constituted automatic negligence ("negligence per se") against the building owner. If violation of a municipal code is negligence per se, then the rental building owner is liable and the only issue for trial is whether the owner's negligence caused the plaintiff's damages and, if so, the amount of those damages. Until the <em>Winger </em>decision, Iowa law had not been entirely clear on whether a local law, like a city code (as opposed to a statewide Iowa Code section or state administrative regulation), could form the basis for a finding of negligence per se.</p>
<p>The Iowa Supreme Court determined that the breach of a specific safety-related requirement in a municipal ordinance with the force of law may constitute negligence per se. The court noted that Iowa has long recognized the violation of a municipal safety ordinance can be negligence per se. The rule is that if a statute or regulation provides a rule of conduct specifically designed for the safety and protection of a certain class of persons, and a person within that class receives injuries as a proximate result of a violation of the statute or regulation, the injuries would be actionable as negligence per se. But to be actionable as negligence per se, the harm for which the action is brought must be of the kind that the statute was intended to prevent; and the person injured, in order to recover, must be within the class which the statute was intended to protect.&#160; </p>
<p>The court concluded that that rule applies equally to municipal ordinances, like the housing code section at issue in <em>Winger.</em>&#160; The ordinance at issue requires forty-two-inch high guardrails on second floor or higher balconies. The obvious purpose for requiring a forty-two-inch high guardrail on balconies above ground level is to protect persons from getting killed or injured falling off the balcony. The plaintiffs' daughter clearly was within the scope of persons intended to be protected from injury by the municipal ordinance. The requirement is sufficiently specific to prescribe a standard of care the violation of which constitutes negligence per se. </p>
<p>In reaching that decision, the court rejected the defendant's argument that only a violation of a statewide law can be negligent per se. Such a ruling would&#160; conflict with Iowa’s public policy encouraging local control over residential housing for public health and safety. The Iowa legislature has specifically allowed local housing ordinances more stringent than statewide standards in Iowa's Uniform Residential Landlord Tenant Act. The Iowa Legislature thus tolerates, and in fact encourages, local variations in housing codes. Although building codes may differ on either side of a city’s boundary, buildings are in fixed locations. Building owners will not have to deal with inconsistent local codes at a single location. In short, the Iowa Supreme Court saw no good reason to limit application of the negligence per sedoctrine to laws of statewide application. <br /> </p>Fri, 24 Jun 2016 14:26:00 +0000http://erbelaw.com/blog/posts/iowa-supreme-court-issues-decision-regarding-effect-of-local-ordinances-in-premises-liability-cases
Iowa Supreme Court Expands Proof Requirements For Negligent Training Claims<p>A subset of negligence law is a theory available against employers called "negligent training." A claim of negligent training allows for direct liability against an employer when an employee does something wrong and causes personal injuries or property damage. If the injured party can prove that the employee's negligence stemmed from the employer's failure to properly train the employee, then the employer may be liable for the party's damages.</p>
<p>On June 10, 2016, the Iowa Supreme Court issued a decision in a premises liability case, <em>Brenda Alcala v. Mariott International, Inc., </em>that added a component to Iowa's law concerning negligent training claims that hadn't previously been discussed in great detail. Although <em>Alcala</em> will primarily be analyzed as a premises liability case, within the ruling are important comments about the necessary proof for negligent training claims that Iowa lawyers should pay attention to. More detail will be discussed below, but the <em>Alcala </em>decision essentially turns negligent training claims into a more difficult proposition than a standard negligence claim.</p>
<p> Brenda Alcala slipped and fell on ice at a Mariott hotel. She filed a personal injury claim. One of her arguments at trial was that Mariott had inadequately trained its employees regarding ice removal. The jury returned a verdict in Alcala's favor. Mariott appealed.</p>
<p>Although the <em>Alcala </em>decision covers several legal issues, I'll solely focus on the negligent hiring analysis. At trial, no witness testified as to <br />the standard of practice for training employees on deicing walkways or what employees should be taught on that subject. Further, no witness testified as to any deficiency in Marriott’s training procedures or documents. Alcala argued that the jury could find Marriott breached a duty to train its employee by connecting these dots: there was ice on the sidewalk; therefore, the employees did not properly apply deicer; therefore, Marriott did not train its employees properly. The court concluded that such evidence was insufficient to support a negligent training claim.</p>
<p>The court stated that negligent training claims fail as a without testimony establishing the standard of practice for training employees for the job at issue. It's not enough to show the mistakes or negligent conduct of the employee; rather, to recover against the employer under a negligent-training theory, evidence of a specific standard of care for training and its breach is required. Lack of testimony to indicate what training was omitted is fatal to a negligent training claim. Merely trying to infer negligent training from the facts of the incident is not enough to state a meritorious negligent training claim.</p>
<p>In sum, the Iowa Supreme Court has practically turned negligent training claims into malpractice-type actions. In professional malpractice actions, the plaintiff must specifically establish the applicable standard of care and provide proof as to how that standard was breached. That usually must be done through expert testimony. For all intents and purposes, the same is now true for negligent hiring claims in Iowa. That such is the case is confirmed by the dissenting opinion in <em>Alcala</em>, which includes a lengthy discussion concerning the fact that the Iowa Supreme Court incorrectly increased the proof requirements for negligent training claims to the point that expert testimony would now be necessary in a basic-level negligence claim, when previously it hadn't been.</p>Fri, 10 Jun 2016 13:50:00 +0000http://erbelaw.com/blog/posts/iowa-supreme-court-expands-proof-requirements-for-negligent-training-claims
The Requirement Of An "Acceptance" To Create A Binding Contract<p>There are several requirements that must be met for there to be a binding contractual agreement between two parties. One of the requirements is that one party must offer to do something in exchange for something that the other party agrees to do (the "consideration"). That other party must then accept that offer to create a binding contract. So, for example, a person selling a house offers to sell it for a certain price (the consideration) and somebody may accept that offer by agreeing to pay the purchase price or some other negotiated amount, thus creating a binding contract (subject to any cancellation terms in the purchase agreement).&#160; </p>
<p>All of that's nice and clean when the contract at issue is something as formal as a purchase agreement for a house or car.&#160; But we potentially form binding contracts, especially verbal or oral contracts, more frequently than just the examples of buying a car or house, which don't happen very often for most people. Things can become a little messier absent a formal written agreement. The issue whether there was even a binding contract then sometimes arises.</p>
<p>Sometimes those arguments occur over whether there was actually a legally enforceable offer for the other party to accept. But I want to talk about the back end of a potential deal, acceptance of the offer. Parties trying to avoid contractual obligations will sometimes argue, among other things, that they never accepted the offer; therefore, there is no binding contract for a court to enforce. That then implicates the legal requirements for what is necessary to constitute a party's acceptance of a contractual offer.</p>
<p>The overarching legal principle is that acceptance of an offer is a manifestation of assent to its terms made by the party considering the offer in a manner invited or required by the offer. So if the agreement requires a signature to be accepted and binding, then only a signature counts as acceptance and creates contractual obligations. Written contracts can also require that valid, binding acceptance requires the acceptance to be delivered to a certain place (like a corporate office) or in a certain manner (like first class mail).&#160; </p>
<p>On the other hand, although a party making an offer may specify how it shall be accepted, failing that anything that amounts to a manifestation of the determination to accept the offer is sufficient, including an oral response. Manifestation may be partly by written or spoken words or by other acts or failure to act. The conduct of a party is not effective as a manifestation of assent unless the party intends to engage in the conduct and knows or has reason to know that the other party may infer from the conduct that it's intended as a manifestation of assent. &#160; </p>
<p>This may come up in your personal life most frequently when you hire a contractor for anything around your house. The contractor will usually review your situation and prepare a bid, quote, or estimate for the work. You then decide whether you want the contractor to do the work for the quoted price. If you do, then you may do nothing more than tell the contractor that you want the work to begin. You may not actually sign anything, and you certainly don't execute contractual instruments as complicated and formal as you would when buying a house or vehicle. But that doesn't mean that your obligation to the contractor is any less enforceable. </p>Wed, 25 May 2016 11:35:00 +0000http://erbelaw.com/blog/posts/the-requirement-of-an-acceptance-to-create-a-binding-contract
EEOC Finally Tries To Clear Up The Issue Of When Medical Leave Is A Reasonable Accommodation Under The Americans With Disabilities Act<p>A source of significant confusion in the employment law field has been the interplay between the Family and Medical Leave Act and the Americans With Disabilities Act. The issue is what happens when an employee exhausts available FMLA medical leave but still needs more time off. Does the ADA require employers to allow additional medical leave as a form of reasonable accommodation?&#160; </p>
<p>The Equal Employment Opportunity Commission chimed in on those questions in its May 9, 2016 publication entitled <a target="_blank" title="https://www.eeoc.gov/eeoc/publications/ada-leave.cfm" href="https://www.eeoc.gov/eeoc/publications/ada-leave.cfm">Employer-Provided Leave and the Americans with Disabilities Act.</a> It noted that a reasonable accommodation is, generally, any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities. Reasonable accommodations can include making modifications to existing leave policies and providing leave when needed for a disability, even when an employer does not offer leave to other employees. The resource document is meant to explain to employers and employees in a clear and practical way how to approach requests for leave as a reasonable accommodation so that employees can manage their health and employers can meet their business needs.” Just like any other accommodation, the purpose of leave as an accommodation is to give employees with disabilities equal employment opportunities.</p>
<p>The&#160; EEOC observed that the point of the ADA's reasonable accommodation mandate is to compel employers to alter their policies to enable employees with disabilities to work. Leave as a reasonable accommodation furthers that goal when it enables an employee to return to work after a period of leave. That's true even if the employer doesn't have a general policy allowing for medical leave and the employee's exhausted all available medical leave under the under the FMLA. An employer's reasonable accommodation obligations under the ADA may require it to provide a disabled employee with special medical leave as a reasonable accommodation if the employee requires it, as long the employee's medical leave does not create an undue hardship for the employer. </p>
<p>So how's this supposed to work? The EEOC recognizes that it's incumbent upon employees to notify employers about the need for medical leave related to a disability. When an employee requests leave for a medical condition, the employer must consider the request as one for a reasonable accommodation under the ADA. But if the leave request can be honored by an employer's leave policy, the FMLA or a state or local law mandating medical leave, or through workers' compensation, the employer may provide leave through those laws or programs rather than as an ADA reasonable accommodation. If medical leave is not available through any other method, then an employer should immediately begin the "interactive process" with the employee, which I discussed in an earlier <a target="_blank" title="http://www.erbelaw.com/blog/posts/clearing-up-confusion-about-the-ada-s-interactive-process-for-reasonable-accommodation-claims" href="http://www.erbelaw.com/blog/posts/clearing-up-confusion-about-the-ada-s-interactive-process-for-reasonable-accommodation-claims">post</a>.</p>
<p>The interaction between the employer and the employee may need to continue after the employee begins medical leave as a reasonable accommodation. Perhaps the employee doesn't have a set return to work date or needs to extend any planned medical leave. Both situations may necessitate further employer/employee interaction. An employer that has granted medical leave with a fixed return date is not allowed to request that the employee provide periodic updates, although the employer may contact the employee to receive an update on the employee's progress.</p>
<p>The EEOC's resource document also discussed the ADA's impact when employee's are returning to work from a medical leave that was granted as an ADA accommodation.&#160; I'll discuss that in a later post.</p>Wed, 11 May 2016 15:14:00 +0000http://erbelaw.com/blog/posts/eeoc-finally-tries-to-clear-up-the-issue-of-when-medical-leave-is-a-reasonable-accommodation-under-the-americans-with-disabilities-act
U.S. Department Of Labor Publishes Guidance On Joint Employment Considerations For Overtime Cases<p>I've previously <a target="_blank" title="https://erbelaw.wordpress.com/2013/09/24/joint-versus-separate-employers-under-federal-overtime-law/" href="https://erbelaw.wordpress.com/2013/09/24/joint-versus-separate-employers-under-federal-overtime-law/">written about</a> the overtime law complications caused when an employee works for two or more employers. Are the employers separate and distinct, such that the person's hours for each are counted separately to determine whether either employer owes overtime? Or are they "joint employers," meaning that the employee's hours for each are combined for purposes of determining whether the employee exceeded forty hours in a given week and is thus entitled to overtime compensation? On January 20, 2016 the U.S. Department of Labor issued a new Administrator's Interpretation that discusses the DOL's position on joint employer principles under federal overtime law.</p>
<p>The DOL states that joint employment can be “horizontal” or “vertical.” “Horizontal” joint employment exists if two or more employers each separately employ an employee but are sufficiently related to one another with respect to that employee, most commonly through some sort of shared control over the employee. In deciding whether a horizontal joint employment relationship exists, the main factor is the amount of association between the possible joint employers and the extent to which they share control over the potential joint employee. It doesn't matter whether the potential joint employers are separate legal entities.&#160; </p>
<p>According to the DOL, numerous factors are pertinent to whether two or more employers are considered joint employers of a single employee:</p>
<ul><li> Who owns the potential joint employers (i.e., does one employer own part or all of the other or do they have any common owners).</li>
<li>Do the potential joint employers have any overlapping officers, directors, executives, or managers?</li>
<li>Do the potential joint employers share control over operations (e.g., hiring, firing, payroll, advertising, overhead costs)?</li>
<li>Are the potential joint employers’ operations inter-mingled (for example, is there one administrative operation for both employers, or does the same person schedule and pay the employees regardless of which employer they work for)?</li>
<li>Does one potential joint employer supervise the work of the other?</li>
<li>Do the potential joint employers share supervisory authority for the employee?</li>
<li>Do the potential joint employers treat the employees as a pool of employees available to both of them?</li>
<li>Do the potential joint employers share clients or customers?</li>
<li>Are there any agreements between the potential joint employers?</li>
</ul>
<p>In a “vertical” joint employment relationship, an employee of one employer (called the “intermediary employer”) is economically dependent on another employer (the “potential joint employer”) with respect to the work being performed. “Vertical” joint employment usually occurs when a potential joint employer has a relationship with an intermediary employer under which it supplies labor or performs select employer functions, such as personnel matters. Under a vertical joint employment analysis, the dominant issue isn't the relationship between the two employers. Instead, the main concern is the employee’s relationship with the potential joint employer.</p>
<p>For a vertical joint employment analysis, the DOL suggests an “economic realities” test. This test focuses on whether the potential joint employee is economically dependent on the potential joint employer. The economic realities test gives little weight to the amount of control the potential joint employer has over the potential joint employee. The factors for the economic realities test include:</p>
<ul><li> Who directs or supervises the work performed.</li>
<li>Who controls the employment conditions.</li>
<li>Whether the relationship permanent.</li>
<li>Whether the work rote or repetitive.</li>
<li>Whether the work is integral to the potential joint employer’s business.</li>
<li>Whether the work is performed on the potential joint employer’s premises.</li>
<li>Whether the potential joint employer performs administrative functions commonly performed by employers.</li>
<li>Whether the intermediary employer provides services to more than one potential joint employer.</li>
<li>Whether the potential joint employer can pass responsibility from the work from one intermediary employer to another without material changes for the employees.</li>
<li>Whether the employee works exclusively or predominantly for the potential joint employer.</li>
</ul>
<p>Please feel free to contact us if you have an overtime law issue that you'd like to discuss.</p>Wed, 27 Apr 2016 13:20:00 +0000http://erbelaw.com/blog/posts/u-s-department-of-labor-publishes-guidance-on-joint-employment-considerations-for-overtime-cases
Auto Insurance Coverage For Chain Reaction Collisions<p>Most vehicle insurance policies have a "per accident" limit. The policy also likely states that the "per accident" limit is the most the insurer will pay for a single accident, regardless of the number of vehicles allowed. But what happens if the insured vehicle is involved in multiple, but separate, chain reaction collisions? Does each collision receive a separate "per accident" limit, or are they all wrapped into a single accident for purposes of the single-accident limitation? That was the issue before the Iowa Supreme Court in the April 1, 2016 case of <em>Just v. Farmers Automobile Insurance Association.</em>
</p>
<p>&#160;<em>Just </em>involved a chain reaction collision. Marlin Just was driving a semi-truck southbound on US Highway 5 near Hartford. Suddenly, Just&#160; encountered a Chevy Tahoe heading in the wrong direction (northbound) on his side of the highway. He took evasive action but was unable to avoid a collision. Just managed to maintain control of the semi, which came to a stop approximately two to three hundred feet from the site of impact. Just turned on his hazard lights and called 911. </p>
<p>Meanwhile, Travis Hughes’s motorcycle was following Just’s semi in the same southbound direction. Hughes saw the semi with its hazard lights on pulling off to the right side of the road. Hughes began to slow down his motorcycle. Hughes moved to the left lane and noticed small <br />pieces of debris in the road, which he steered around. His headlight then illuminated “a dark blob”—Crivaro’s crushed SUV—directly in his path. The SUV was blocking nearly all of the left lane and part of the right lane. Hughes could not see a safe path around the SUV and did not have time to stop. He laid his bike down on its right side and slid, colliding with the SUV.&#160; There was no more than a few seconds between the two collisions.</p>
<p>Farmers Automobile Insurance Association insured John Crivaro, the driver of the wrong-way vehicle. The policy included "per accident" limits of $500,000. A legal dispute arose over whether separate $500,000 limits applied to the separate claims of Just and Hughes, or whether all claims arising from the chain of the event were subject to the same $500,000 per accident limit, meaning that each injured person had to share only $500,000 in coverage. This dispute eventually made its way to the Iowa Supreme Court.</p>
<p>The court believed that the clause stating that Farmer’s liability is limited to $500,000 per accident, regardless of the number of vehicles involved, was important to that limit's meaning. That language swept multi-vehicle events within the definition of a single accident. If every impact constituted a separate accident, that language would have little or no meaning because the probability of more than two vehicles colliding at the same instant is very low. Interpreting the Farmers policy in that manner would violate the legal rule that, to the extent possible, insurance policies are interpreted in a manner that does not render any portion of them meaningless. </p>
<p> The court further noted that the policy language in dispute was standard language that other courts had interpreted. Courts in other jurisdictions typically apply the “cause theory” to policies with similarly-worded liability limits. Under this approach, the number of accidents is determined by the number of causes of the injuries. If there was a single, uninterrupted, and continuing cause that led to all the injuries at issue, then there was but one accident for purposes of a "per accident" limit. Under the "cause theory," courts have found a single accident when the same negligence of the insured caused two collisions in rapid succession and the policy contained language limiting liability to a certain amount“regardless of the number of . . . [v]ehicles involved in the accident.” As part of this analysis, courts examine the time and space interval between the collisions. </p>
<p>Using the cause theory, the court concluded that the accident involving Just and Hughes was a single accident subject to a total policy limit of $500,000. Farmers’ insured, Crivaro, drove in the wrong direction on the highway, causing a collision with Just’s semi. Seconds later, Hughes’s motorcycle ran into Crivaro’s demolished SUV that was still in the middle of the highway.&#160; Crivaro never regained control of the SUV because he was killed in the first collision.&#160; Crivaro’s presence on the wrong side of the highway set this rapid-fire sequence of events in motion, and this type of chain reaction is the quintessential situation the cause theory was intended to resolve. Both impacts resulted from an unbroken causal chain—the collisions were closely related in space and time and trace their origins to a single cause. </p>Wed, 13 Apr 2016 11:16:00 +0000http://erbelaw.com/blog/posts/auto-insurance-coverage-for-chain-reaction-collisions
U.S. Supreme Court Says That It's Not Supposed To Be Impossible For Employees To Pursue Wage And Overtime Class Actions<p>Our firm handles a number of wage and overtime class actions. They're an important part of wage and overtime litigation. Often, such claims are small on an individual basis. To avoid having tens of thousands of such suits filed one by one, it's important that employees be able to group themselves together and pursue relief as a class action. </p>
<p>On March 22, 2016 the United States Supreme Court issued an important ruling in <em>Tyson Foods, Inc. v. Bouaphakeo.</em> The court confirmed that employees are not required to surpass difficult tests in order to prosecute a wage or overtime class action. This case originated in Iowa federal court. The employees worked at Tyson Foods' pork processing plant in Storm Lake, Iowa. They work in the plant's kill, cut, and retrim departments, where hogs are slaughtered, trimmed, and prepared for shipment. The work requires employees to wear certain protective gear.&#160; The exact composition of the gear depends on the tasks a worker performs on a given day. The issue was whether the employees' "donning and doffing" of the protective gear at the beginning and ends of their shifts counted as compensable working time for purposes of determining whether they exceeded forty hours in a week and were owed overtime.</p>
<p>The employees sought class certification of the overtime claims. Tyson Foods objected to treatment of the case as a class action. It argued that because of the variance in protective gear each employee wore, the employees' claims were not sufficiently similar to be resolved on a classwide basis. The trial court rejected that position. It concluded there were common questions susceptible to classwide resolution. The case proceeded to a jury trial and a verdict was returned against Tyson Foods, which led to its appeal.</p>
<p>Since the employees' claims related to overtime, each employee had to show he or she worked more than forty hours a week, including the time spent donning and doffing protective equipment, in order to recover. But&#160; because of Tyson's failure to keep records of donning and doffing time, the employees were forced to rely on what the parties describe as "representative evidence" to prove how many overtime hours, if any, each had. This evidence included employee testimony, video recordings of donning and doffing at the plant, and statistical analysis by expert witnesses.</p>
<p>On appeal, Tyson's primary argument regarding class certification concerned the fact that, to be entitled to recovery, each employee must prove that the amount of time spent donning and doffing, when added to his or her regular hours, amounted to more than forty hours in a given week. Tyson argued that these necessarily person-specific inquiries into individual work time predominate over the common questions raised by the employees' claims, making class certification improper. The employees countered that these individual inquiries are unnecessary because it can be assumed each employee donned and doffed for the same average time determined by the employee's expert witnesses. Whether that inference was permissible was the central dispute in the case.</p>
<p>The court approved of the use of statistical evidence in determining the employees' claims on a classwide basis. Tyson brought that issue on itself by not maintaining the requisite time records for each employee. The Supreme Court has in the past ruled that when employers violate their statutory duty to keep proper records, and employees thereby have no way to establish the time spent doing uncompensated work, the remedial nature of federal overtime law and the public policy that it embodies prohibit making the burden of proving uncompensated work an impossible hurdle for the employee. Instead of punishing employees by denying them any recovery on the ground that they are unable to prove the precise extent of uncompensated work, the court has held that employees carry their burden if they prove that they performed work for which they were improperly compensated. If the employee produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference, the burden then shifts to the employer to produce evidence of the precise amount of work performed or evidence to negate the reasonableness of the inference to be drawn from the employee's evidence. It was thus proper for the trial court to certify the case as a class action, even though there was not individual proof from each of the thousands of class members regarding the amount of time they spent donning and doffing protective equipment.</p>Wed, 30 Mar 2016 12:23:00 +0000http://erbelaw.com/blog/posts/u-s-supreme-court-says-that-it-s-not-supposed-to-be-impossible-for-employees-to-pursue-wage-and-overtime-class-actions
Private Nuisance Liability For Rowdy Crowds At A Business <p>Imagine you live near a business that attracts large and unruly crowds late at night and into the early morning, perhaps a small concert venue near a residential area or a bar or club. The crowds are noisy; there may be loud music playing outside. Traffic is increased well beyond what you normally experience. The noise is obnoxious; it keeps you awake if you're trying to sleep. At a minimum, the traffic is annoying, but it also might become dangerous either because of unusual road congestion or reckless driving. Then imagine that this happens on a weekly basis, if not more frequently. What can you do, short of moving?</p>
<p>The first thing you can try is calling the police to report noise or traffic issues. That may or may not work. There's no guarantee that the police will respond in a timely manner. Also, the police are likely to give up after a few calls and recommend that you address the issues directly with the business owner. In our private nuisance cases we've generally found that our clients didn't receive a satisfactory resolution by involving law enforcement.</p>
<p>That doesn't mean that you have to put up with a business's disruptive customers. There's a fine line between what must be reasonably tolerated from a business and what goes beyond normal customer traffic and conduct, especially in urban areas. There is a difference between normal customer and vehicle traffic incident to a business, for which no nuisance claim lies, and unusually large and noisy crowds, which may be considered a private nuisance. </p>
<p>A business may be liable for a nuisance if its patrons’ objectionable conduct is shown to have some reasonable relation to the conduct of the business, even though the acts complained of occurred off the premises. Liability for private nuisance may be imposed upon a business that sets in motion the forces that eventually cause the objectionable customer conduct. That can include attracting patrons whose conduct violates the rights of residents to peacefully use and enjoy their property, regardless of whether the business actually caused its customers to create a nuisance. In short, a business can be liable under private nuisance theory for customer traffic, noise, and crowds if the business caused, permitted, consented to, or acquiesced in the customer behavior. A business may thus be responsible for the acts of its customers or others if acts by them upon the business property or in going to or leaving it interfere with a neighbor’s use of nearby property. </p>
<p>A successful private nuisance case against a business based upon the conduct of the business's customers allows the plaintiff two types of relief. First, a court may issue an injunction against the business. An injunction is a court order that requires the business to take steps to eliminate or reduce the issues its customers are causing. Second, the plaintiff may recover compensatory money damages, which in a private nuisance case are usually for the plaintiff's loss of use and enjoyment of his or her land.&#160; </p>Tue, 15 Mar 2016 18:50:00 +0000http://erbelaw.com/blog/posts/private-nuisance-liability-for-rowdy-crowds-at-a-business
Warning -- Your Property Insurance Probably Does Not Automatically Cover Flooding Caused By Sump Pump Failure<p>As Spring approaches, so will the likelihood of heavy spring rainfalls. So picture this scenario: You wake one morning. It's pouring. You go to work. The rain continues throughout the day. You come home, go downstairs, and find that your basement's full of rainwater. There'll be thousands and thousands of dollars of repair, replacement, and cleanup. It turns out that your sump pump failed for one reason or another. But you have homeowners insurance, so it'll be a headache but in the end not a financial catastrophe, right? Actually, you'd probably be wrong unless you've taken extra steps to insure yourself against sump pump failures.&#160; </p>
<p>Not all homeowners are even familiar with what a sump pump is or what one does until the sump pump fails and their basement is filled with water. A sump pump is designed to pump water out of a flooded basement after the sump pump's water sensor detects water and starts the pump. If the sump pump's working as intended, it'll drain water from a pit.&#160; That keeps the basement dry during sewer or water backups or storms. But if the sump pump fails, the pit will continue filling with water and may eventually overflow, flooding the basement with water. A sump pump's failure can be caused by a mechanical malfunction or an electrical outage.&#160; </p>
<p>A standard homeowners insurance policy doesn't cover damages from water that entered a house through a drain, toilet, line etc. A homeowner whose sump pump fails or is overloaded with water is also not covered for damage caused by the water or or clean up. Special flood insurance policies offered through the National Flood Insurance Program don't cover sump pump failure either. Flood insurance applies to water that comes over the ground and over a house's foundation, not water that comes in from below a house, such as through a water or sewer line or sump pump system.</p>
<p>Homeowners can add water backup and sump pump coverage to their existing homeowners insurance. It's relatively inexpensive (particularly in comparison to the thousands of dollars in damage and expenses that a single sump pump failure can cause), available for probably less than $100 per year depending on the amount of coverage the homeowner chooses. That extra coverage usually covers drains, discharges, sump pumps, and toilets.&#160; In other words, any routes for outside water to enter your house. The coverage will cover the cost (up to the coverage limits and subject to any deductibles or other policy modifications) to replace or repair any damage resulting from a water backup, including cleanup costs and replacement of any personal property.</p>
<p>As I mentioned, sump pump and water backup coverage is not automatically part of your homeowners policy.&#160; You have to specifically ask that it be added, probably as a "rider" or "endorsement." It's something that every homeowner should consider given the coverage's low cost and the fact that, depending on where the homeowner lives, heavy rain events can occur several times a year or even more.</p>Fri, 04 Mar 2016 13:17:00 +0000http://erbelaw.com/blog/posts/warning-your-property-insurance-probably-does-not-automatically-cover-flooding-caused-by-sump-pump-failure
The Basics Of Iowa's Lemon Law<p>One type of <a title="Products Liability/Product Warranty Law" href="/practice-areas/products-liabilityproduct-warranty-law">products liability</a> claim that our firm handles is lemon law claims. Iowa's lemon law is found in Iowa Code Chapter 322G. Iowa Code 322G states that its purpose is to protect consumers from defective vehicle: "The general assembly recognizes that a motor vehicle is a major consumer acquisition and that a defective motor vehicle undoubtedly creates a hardship for the consumer. The general assembly further<br /> recognizes that a duly franchised motor vehicle dealer is an authorized service agent of the manufacturer. It is the intent of the general assembly that a good faith motor vehicle warranty complaint by a consumer be resolved by the manufacturer within a specified period of time. It is further the intent of the general assembly to provide the statutory procedures whereby a consumer may receive a replacement motor vehicle, or a full refund, for a motor vehicle which cannot be brought into conformity with the warranty provided for in this chapter."</p>
<p>Iowa's lemon law doesn't apply to all vehicle issues. The vehicle's problem or defect must render the vehicle unfit, unreliable, or unsafe for ordinary use or significantly diminish the value of the vehicle. Further, the problem or defect must have occurred during the "lemon law rights period." That period is the term of the manufacturer's written warranty, the period ending two years after the date of the original delivery of a new motor vehicle to a consumer, or the first 24,000 miles of operation attributed to a consumer, whichever comes first.</p>
<p>A consumer may have protection under the lemon law if at least one of the following conditions is present: (1) the vehicle has been in the shop three or more times for the same problem and the problem still exists; (2) the vehicle has been in the shop one time by reason of a defect likely to cause death or substantial bodily injury and the problem still exists; or (3) the vehicle has been out of service for any number of problems twenty or more days, and a problem still exists. If any of those conditions are present, the consumer must notify the vehicle manufacturer by certified, registered, or overnight mail so the manufacturer has one final opportunity to fix the problem. It's important that the consumer follow the notice requirement and send the notice to the manufacturer's correct address. Failure to properly provide the required notice can forfeit the consumer's lemon law rights. </p>
<p>It's also important that a consumer contemplating a lemon law claim properly document the vehicle's issues. That includes copies of all repair invoices for each instance in which the vehicle was in the shop. Consumers should make sure that the repair documents include any diagnosis made, all work performed on the vehicle, including a general description of the problem the consumer reported, the date and the odometer reading when the motor vehicle was submitted for examination or repair, and the date when the repair or examination was completed.
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<p>The consumer needs to send those documents to the manufacturer with the lemon law notice. The consumer should also indicate what needs to be done to resolve the consumer's issues with the vehicle and request a response within ten days. If the manufacturer is compliant with Iowa's lemon law, it should contact the consumer and provide a repair facility where a final attempt will be made to repair the vehicle. If the manufacturer fails to contact the consumer within ten days, the manufacturer is not entitled to another opportunity to repair the vehicle. If that happens, or if the repair facility fails in the final attempt to repair the vehicle, the consumer can request that the manufacturer replace the vehicle or refund the purchase price, minus a reasonable amount for the consumer's use of the vehicle. </p>
<p>If all of those steps don't resolve the consumer's vehicle complaint, the consumer may file a lemon law lawsuit against the manufacturer. There may be a requirement that the consumer first go through the manufacturer's certified dispute program, if the manufacturer has one. Iowa's lemon law allows the consumer to recovery attorney fees and expenses if the lemon law case is successful. The consumer must file suit under the lemon law within one year following the expiration of the manufacturer's express warranty, or one year following the first 24,000 miles attributed to a consumer, or one year following the first 24 months of ownership, whichever occurs first.</p>Wed, 17 Feb 2016 18:56:00 +0000http://erbelaw.com/blog/posts/the-basics-of-iowa-s-lemon-law
Recovering Damages In Iowa Trade Secret Act Cases<p>I've previously written about claims under Iowa's Uniform Trade Secrets Act. Now I want to talk about the potential damages that can be recovered in a trade secret case. They include damages that aren't available in many other types of cases.</p>
<p>Iowa Code 550.4(1) allows for various types of damages in a trade secret case: "Damages may include the actual loss caused by the misappropriation, and the unjust enrichment caused by the misappropriation which is not taken into account in computing the actual loss. In lieu of damages measured by any other methods, the damages caused by misappropriation may be measured by imposition of liability for a reasonable royalty for a person's unauthorized disclosure or use of a trade secret."</p>
<p>Trade secret valuation is particularly difficult. This is an area in which courts frequently cite the rule that precision in proving damages is not necessary. As long as there's proof that some type of damages has occurred, the fact that the amount of damages is not precisely known is not fatal to a trade secret claim.</p>
<p>Lost profits are a common measure of damages in trade secret cases. Or the damages may be looked at from the opposite perspective, which is the amount of profit that the defendant has derived from the unauthorized use of the plaintiff's trade secret. A market analysis may be undertaken to determine a trade secret's value. That usually will be done through the testimony of an expert witness. Market analysis is considered a reasonable basis from which the amount of damages can be inferred or approximated. </p>
<p>As noted above, courts have the authority to award a "reasonable royalty" as an alternative measure of damages. Usually a reasonable royalty is a damages measure suitable only to cases in which the defendant has made no profit and the plaintiff is unable to establish a monetary loss. Reasonable royalties need not be limited to rate of any royalty. In some cases the defendant may not have realized a profit; in such event, defendant's revenues and plaintiff's probable profits on such revenues might be the measure.&#160; </p>
<p>A reasonable royalty is simply that amount which estimates what a person desiring to use a trade secret would be willing to pay for its use and a trade secret owner desiring to license the trade secret would be willing to accept. The primary inquiry is what the parties would have agreed upon, if both were reasonably trying to reach an agreement for the use of the trade secret. Factors in the reasonable royalty analysis include the nature of the trade secret, its utility and advantages, and the extent of the use involved. There is no mathematical formula for the determination of a reasonable royalty. It'll usually amount to no more than a reasonable approximation of the trade secret's value. </p>
<p>Such flexibility in determining a reasonable royalty is imperative in cases involving misappropriation of trade secrets. That is because public policy requires that unfair competitors must not be allowed to profit by their wrongful methods and that those who have been injured by them should receive adequate compensation for the loss or injury they have incurred. This is especially important where (1) a defendant has destroyed the value of plaintiff's secret through publication and the plaintiff has not enjoyed any profits and (2) the plaintiff is hard-pressed to show any loss.</p>Fri, 12 Feb 2016 15:05:00 +0000http://erbelaw.com/blog/posts/recovering-damages-in-iowa-trade-secret-act-cases
Iowa Court Of Appeals Reminds Us That Policyholders Are Responsible For Securing Desired Insurance Coverage<p><img data-rel="225x255" alt="Insurance 290x230" title="Insurance 290x230" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMTMvNDgvMzg0L2luc3VyYW5jZV8yOTB4MjMwLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/insurance-290x230.jpg" width="225" height="179" /></p>
<p><a title="Insurance Law" href="/practice-areas/insurance-law">Insurance</a> coverage is a basic part of a business's financial security. Often, for example workers' compensation insurance, the state mandates that a business have insurance coverage or prove that it's financially capable of being self-insured and paying workers' compensation claims out of pocket. But this also creates a burden for businesses in that they have to review their coverages and ensure that everything necessary is in place, contacting their agent or insurer as necessary to adjust or add coverages. The consequences of failing to do so were illustrated in the January 27, 2016 Iowa Court of Appeals decision in <em>L40 Cattle Company v. Prins Insurance.</em>
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<p>The case arose because L40 Cattle Company made insurance decisions about its workers' compensation coverage that it later regretted. L40 initially obtained an insurance policy without workers’ compensation coverage. It later added this coverage for a single individual, who was an owner of the company. The workers’ compensation application did not seek coverage for any employees of the company. Less than a year after obtaining the coverage, L40 submitted a cancellation request. Prins complied with the request and issued a written notice of cancellation. You can see where this is going.</p>
<p>Unbeknownst to Prins, a number of individuals worked for and were paid by L40. One of these individuals sustained an injury that resulted in the amputation of his upper left leg. L40 settled the employee's <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">personal injury</a> claim out of its own resources because it lacked workers' compensation coverage.&#160; Cue the lawyers. &#160; &#160; </p>
<p>L40 sued Prins. It alleged that Prins breached its contract with L40 by implementing a cancellation of coverage when doing so was in violation of a reasonable standard of care, failing to advise L40 or obtain a reinstatement of workers' compensation coverage when the renewal date arrived, and failing to properly advise L40 of the risks and necessity of coverage for its employees. L40 also alleged that Prins breached a fiduciary duty for essentially the same reasons. L40 later added a negligence claim and alleged Prins was liable for failing to extend a workers’ compensation policy on a related business to L40. The trial court dismissed the case before trial and L40 appealed.</p>
<p>Insurance procurers’ duties to clients have expanded and contracted over time. Such obligations are currently governed by Iowa Code 522B.11(7). That code section establishes fairly limited responsibilities in these situations. Insurance agents and procurers need only use reasonable care, diligence, and judgment in <em>procuring</em> the insurance requested by an insured. They're not required to serve as advisors or consultants for insurance clients or policyholders unless they holds themselves out as an insurance specialist, consultant, or counselor and receive compensation for consultation and advice apart from commissions paid by an insurer.</p>
<p>Applying those general principles, the Iowa Court of Appeals determined that Prins was not liable to L40: "L40 requested workers’ compensation insurance. Prins obtained it. Later, L40 asked to cancel the policy. Prins obliged. Section 522B.11(7)(a) requires nothing more, unless Prins held itself out 'as an insurance specialist, consultant, or counselor and receive[d] compensation for consultation and advice apart from commissions paid by' L40. It is undisputed that Prins did not receive any additional compensation for its services aside from the commissions. For this reason, the expanded duty exception is inapplicable." So that was that.</p>
<p>The L40 case is a reminder that, unlike lawyers, doctors, accountants, and other professions that are expected to provide advice that customers and clients are entitled to rely upon, insurance agents and insurance companies usually have much more limited duties. In most instances, as long as the insurance agent and the insurer properly execute the policyholder's instructions, there's no potential advice-based liability to the insured unless the agent's being paid for that advice separate from the policyholder's premiums. In other words, the policyholder's instructions need to be executed with speed and precision, but the agent and the insurer have no obligation to advise the insured as to what those instructions should be unless they're being paid for that advice. The compensation requirement for "expanded" duties is almost always fatal to such claims against insurance agents. It doesn't matter how the agency holds itself out, how long the insured has worked with the agency, or whether the agent is the policyholder's friend or family member, if the agent's not being paid to give advice regarding coverage there cannot be any type of negligence claim asserted against the agent for failing to advise the insured to obtain or adjust certain coverages.&#160; </p>Thu, 28 Jan 2016 12:58:00 +0000http://erbelaw.com/blog/posts/iowa-court-of-appeals-reminds-us-that-policyholders-are-responsible-for-securing-desired-insurance-coverage
Illinois Federal Court Rules That Confusion Is A Valid Defense To Overtime Claims<p><img data-rel="225x255" alt="Clock" title="Clock" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDUvMTAvNTkvODg1L2Nsb2NrLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/clock.jpg" width="225" height="207" /></p>
<p>In past blogs, I've written about how the internet has led to employers' ever-expanding expectations for how much their employees should work for free. Examples include off-shift, work-related <a target="_blank" title="http://erbe-law-firm.herokuapp.com/blog/posts/work-related-social-media-activity-as-compensable-working-time" href="http://erbe-law-firm.herokuapp.com/blog/posts/work-related-social-media-activity-as-compensable-working-time">social media activity</a> and <a title="https://erbelaw.wordpress.com/2012/03/30/overtime-compensation-for-off-shift-work-e-mails-and-cell-phone-calls/" href="https://erbelaw.wordpress.com/2012/03/30/overtime-compensation-for-off-shift-work-e-mails-and-cell-phone-calls/">emails</a>. After employees punch out for the day (literally or figuratively), their employers still expect them to advance the employers' business interests by posting on social media or responding to emails, texts, or even telephone calls without being paid for that work. That's particularly prevalent for salaried workers (don't get me started on the failure to pay overtime to salaried workers; I've covered that enough in past posts).</p>
<p>Now, I'm not against work. I'm self-employed. I believe in work. I just don't believe that people should be expected to work for free. I don't believe that certain activities shouldn't be considered compensable work simply because they can be done remotely using a smartphone. Work is work.&#160; If you're benefiting your employer through after-hours social media posts or communications, you ought to be paid for that time regardless of how easy it is to do those things through modern technology.&#160; </p>
<p>Many people, employers and employees, respond to that with something along the lines of "what's the big deal, it's just a little time on the internet or phone." You know what? If it's not a big deal, then the employer can wait to address it until the employee's normal working hours begin. But if something can't wait and must be addressed at 8:30 at night, then it should be considered a "big deal" and the employee ought to be paid for the time spent banging out an email to or talking on the phone with a supervisor at 8:30 at night. That such might occur while the employee's simultaneously watching the latest episode of "The Voice" shouldn't change the fact that in most instances communicating with a supervisor is "work."&#160; &#160; </p>
<p>Anyways. In perusing recent federal court decisions in overtime cases, I came across a real headscratcher. It's <em>Allen v. City of Chicago</em>, a federal overtime case out of Illinois. In <em>Allen, </em>the Chicago Police Department sued the city (obviously before the CPD ran into much more pressing issues) for failing to pay overtime for the officers' work-related, off-duty use of their department-issued BlackBerry smartphones. Even though the officers proved that they performed compensable off-shift work on their BlackBerries and weren't properly compensated for that overtime work, they still lost. It's at that point that I began furiously scratching my head, trying to figure out how employees could prove that they worked overtime, could prove that they weren't paid for that overtime, yet not be entitled to overtime.</p>
<p>Reading farther into the decision, I got my answer. The federal judge who ruled on the case is a world-class contortionist. He, get this, decided that because nobody, not the officers, not the city, kept good records about the off-shift BlackBerry work and nobody really knew what was going on with that, then the employer didn't "know" about the officer's overtime work. An employer's not liable for failing to pay overtime unless it "knows" that the employee's performing the work. So, because of a poor recordkeeping system and a confusing situation that was <em>mostly the employer's fault, </em>city could claim lack of knowledge about the officers' overtime work and escape overtime liability. In short, the principle of this case is, when in doubt about overtime work (even when the employer is partially responsible for that doubt), punish employees by refusing to award them overtime pay.</p>
<p>This decision, if affirmed on appeal and followed by other courts, could set a difficult bar for employees to meet in these types of cases. Even if employees can prove that such off-shift communications constitute compensable working time, they may have trouble proving that the employer "knew" about such working time, thus letting employers off the overtime hook. The burden will be on employees to follow through on the employer's reporting requirements for time worked to ensure that after-hours work is properly compensated. Failure to do so could result in the employee's overtime claim being denied because the employer didn't know about the employee's off-shift work.&#160; </p>Fri, 22 Jan 2016 14:13:00 +0000http://erbelaw.com/blog/posts/illinois-federal-court-rules-that-confusion-is-a-valid-defense-to-overtime-claims
Important Lessons In New Iowa Court Of Appeals Decision In Car Accident Case<p><img data-rel="225x255" alt="Car" title="Car" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMTcvNDYvMjU2L2Nhci5qcGciXSxbInAiLCJ0aHVtYiIsIjIyNXgyNTU%2BIl0sWyJwIiwic3RyaXAiXV0/car.jpg" width="170" height="255" /></p>
<p>The Iowa Court of Appeals issued a January 13, 2016 decision in a <a title="Car Accidents" href="/practice-areas/car-accidents">car accident</a> case, <em>Knowlton v. Grinnell Select Insurance Company</em>, that included two useful lessons for future car accident cases. First, plaintiffs in motor vehicle accident cases must make sure that they've adequately asserted a claim for medical expenses if they want to be able to claim such expenses at trial. Second, strong consideration must be given to hiring a medical expert or paying a treating doctor to testify if a plaintiff wants to claim future or permanent injuries. These same concepts would also apply to <a title="Trucking Accidents" href="/practice-areas/car-accidents/trucking-accidents">truck accident</a>, <a title="Drunk Driving Accidents" href="/practice-areas/car-accidents/drunk-driving-accidents">drunk driving accident</a>, <a title="Motorcycle Accident Law" href="/practice-areas/motorcycle-accident-law">motorcycle accidents</a>, <a title="Pedestrian Accidents" href="/practice-areas/personal-injurywrongful-death-law/pedestrian-accidents">pedestrian accidents</a>, <a title="Bicycle Accidents" href="/practice-areas/personal-injurywrongful-death-law/bicycle-accidents">bicycle accidents</a>, <a title="Fire And Explosion Law" href="/practice-areas/personal-injurywrongful-death-law/fire-and-explosion-law">fire and explosion cases</a>, <a title="Dog Bite Law" href="/practice-areas/dog-bite-law">dog bite cases</a>, <a title="Train And Railroad Accident Law" href="/practice-areas/personal-injurywrongful-death-law/train-and-railroad-accident-law--3">railroad and train accidents</a>, <a title="Nursing Home Injuries" href="/practice-areas/nursing-home-injuries">nursing home injury cases</a>, <a title="Products Liability/Product Warranty Law" href="/practice-areas/products-liabilityproduct-warranty-law">products liability</a> cases, and other types of <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">personal injury or wrongful death</a> actions. </p>
<p>The first issue on appeal was the trial court's refusal to allow the plaintiff, Ellen Knowlton, to claim damages for medical expenses at trial. The first time Knowlton expressed a desire to claim past medical expenses was a few minutes before trial. The trial court concluded that Grinnell would be prejudiced by the submission of medical expenses to the jury since Grinnell had no warning of that claim. The trial court relied on the untimely nature of Knowlton’s claim because she did not include medical expenses in any of her pretrial filings. The lesson from that ruling is that personal injury lawsuits should include a specific request for all damages that may be claimed at trial, including medical expenses.&#160; </p>
<p>The second issue on appeal concerned the trial court's decision that Knowlton wouldn't be able to present claims for future injuries. At trial&#160;Grinnell argued that Knowlton had presented insufficient evidence to support those claims because they included medical questions and no expert testimony had been presented to show that the injuries were permanent or may cause future problems for Knowlton. Knowlton contended that expert medical testimony is not required to establish a permanent injury if its permanency can be inferred from its nature and sufficient evidence was presented to justify submitting the future damage claim to the jury. The trial court, after reviewing Knowlton's medical records, agreed with Grinnell because there was neither medical testimony nor support in Knowlton's medical records regarding claims for future injuries. This is an issue that I wrote about in an earlier blog <a target="_blank" title="https://erbelaw.wordpress.com/2013/08/20/the-importance-of-your-treating-doctor-in-a-personal-injury-case/" href="https://erbelaw.wordpress.com/2013/08/20/the-importance-of-your-treating-doctor-in-a-personal-injury-case/">post</a>.</p>
<p>The Iowa Court of Appeals observed that there can be no recovery for future pain and suffering unless it's reasonably certain that it resulted from the injury.&#160; Expert testimony is often necessary to establish future pain and suffering. However, when pain is suffered right up to the time of trial and there is evidence plaintiff has not fully recovered, future pain and suffering may be submitted to the jury without medical testimony. But a mere statement by the plaintiff that she still suffers pain is not sufficient per se to warrant a finding that there will be any future pain or physical suffering because of her injuries. When the symptoms from which personal injury may be inferred are subjective only, and a plaintiff presents no medical testimony to establish that future pain and suffering or permanent injury are reasonably certain, the trial court need not instruct the jury on that element of damage. Applying that law, the court of appeals agreed with the trial court that Knowlton presented insufficient evidence to submit her claim for future injuries to the jury.</p>Wed, 13 Jan 2016 17:03:00 +0000http://erbelaw.com/blog/posts/important-lessons-in-new-iowa-court-of-appeals-decision-in-car-accident-case
My Car's Airbag Failed -- Do I Have A Case?<p><img data-rel="225x255" alt="Car" title="Car" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMTcvNDYvMjU2L2Nhci5qcGciXSxbInAiLCJ0aHVtYiIsIjIyNXgyNTU%2BIl0sWyJwIiwic3RyaXAiXV0/car.jpg" height="255" width="170" /></p>
<p>Sometimes a <a title="Car Accidents" href="/practice-areas/car-accidents">car accident</a> is more than just a car accident. Additional claims may arise if there's something defective about the vehicle, something that enhances a victim's injuries beyond what they should have been. Those are types of <a title="Products Liability/Product Warranty Law" href="/practice-areas/products-liabilityproduct-warranty-law">products liability</a> claims that are commonly known as "crashworthiness" claims. </p>
<p>The idea is that there may be two levels of fault in a car accident. The first level would be the fault of the other driver or whoever caused the accident. That'd just be a standard car accident case, same as the thousands of motor vehicle accident claims that are pursued throughout Iowa every year. But on rare occasions a second level of liability develops during a car accident if a defect with the vehicle enhances an occupant's injuries beyond that which would normally have been expected in the accident had the vehicle not been defective. That second level of liability implicates the vehicle's manufacturer and the manufacturers or designers of any defective parts or components.</p>
<p>Crashworthiness claims often concern a safety feature in the vehicle, such as seatbelts and airbags, that failed or didn't work properly. The failure of air bags to deploy is a common issue. If an airbag should have deployed in a crash, but didn't, and the airbag failure enhanced the injuries suffered by an occupant in the vehicle, the vehicle manufacturer and any companies involved in the airbag systems design or manufacture could be held liable in a <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">personal injury</a> claim for the occupant's enhanced injuries caused by the airbag failure.</p>
<p>There are three stages of analysis when evaluating an airbag failure claim. First, should the airbag have deployed? Second, did the airbag's failure to deploy enhance the vehicle occupant's injuries in the accident? Third, if the airbag should've deployed and if the airbag failure caused enhanced injuries, why didn't the airbag deploy? </p>
<p>Airbags aren't intended to deploy in all accidents. The collision needs to occur from a certain direction, usually frontal. And it has to occur above a certain speed threshhold. A collision from the wrong angle or below a certain speed is not meant to trigger air bag deployment. Vehicle manufacturers establish the specifications.</p>
<p>The question of whether or not an airbag should've deployed is often more complicated than just considering a vehicle's speed and the direction of a collision. The dynamics of the collision are very important. That includes factors like exactly what the vehicle hit and what happened after the initial contact. For example, a rear-end collision would normally not be expected to cause frontal air bad deployment. But if that initial rear collision pushes the vehicle into another vehicle, a wall, or some other hard object with another force, then the frontal airbags very well should've deployed even though the initial collision was from the rear. In almost every airbag failure case, expert testimony from accident reconstructionists and safety experts will be necessary to prove that airbags should've deployed during the collision at issue.</p>
<p>There are three common causes of an airbag's failure. First, one or more of many possible defects could've caused the airbag's sensors to not properly detect the crash. Second, there could be a defect that prevented the deployment signal from reaching the air bag modules and deploying them. Third, there could be a defect that prevented the air bag modules from deploying correctly.</p>
<p>Please feel free to contact us if you have an airbag failure case that you'd like us to investigate.</p>Wed, 06 Jan 2016 14:19:00 +0000http://erbelaw.com/blog/posts/my-car-s-airbag-failed-do-i-have-a-case
Iowa Supreme Court Clarifies State Pregnancy Discrimination Law<p><img data-rel="225x255" alt="Office" title="Office" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDMvNDcvMzMvMjIyL09mZmljZS5qcGciXSxbInAiLCJ0aHVtYiIsIjIyNXgyNTU%2BIl0sWyJwIiwic3RyaXAiXV0/Office.jpg" width="170" height="255" /></p>
<p>On December 23, 2015 the Iowa Supreme Court issued an important <a title="Employment Discrimination Law" href="/practice-areas/employment-labor-law/employment-discrimination-law">employment discrimination</a> decision in <em>Karen McQuistion v. City of Clinton </em>that clarifies Iowa's pregnancy discrimination law as it relates to pregnancy-related physical <a title="Disability Discrimination Law" href="/practice-areas/employment-labor-law/disability-discrimination-law">disabilities</a>.&#160; </p>
<p>The issue was whether an employer discriminates under the Iowa Civil Rights Act and the Iowa Constitution by refusing to accommodate a pregnant employee with light duties when requested due to her pregnancy. Karen McQuistion is employed as an engineer and paramedic for the City of Clinton fire department. In May 2011, McQuistion informed Fire Chief Mark Regenwether she was pregnant. McQuistion was in the early stages of pregnancy at the time. She requested light-duty assignments for the duration of her pregnancy. The requested accommodation was based solely on her pregnancy and the nature of her job and not on any underlying pregnancy-related medical condition amounting to disability. Fire Chief Regenwether denied McQuistion’s request for a light-duty assignment. He determined she was not entitled to light duty under the city administrative policy because she did not have a disabling injury that occurred on the job.</p>
<p>McQuistion brought a lawsuit against the City of Clinton and the individuals who participated in the decision to deny her light duty (collectively referred to as the City). She alleged, among other claims, pregnancy discrimination under Iowa Code 216.6(2). The Iowa Civil Rights Act makes it an unfair or discriminatory practice for any person to discriminate in employment against an employee based on various classifications, including the “sex . . . or disability of such . . . employee.” Iowa Code § 216.6(1)(a) (2011). Although the Iowa Civil Rights Act doesn't specifically mention pregnancy, the Iowa Supreme Court has held that pregnancy constituted a temporary disability and concluded an employment policy that failed to treat pregnant employees in the same manner as disabled employees regarding the imposition and use of leave constituted sex discrimination. Therefore, under the Iowa Civil Rights Act, terms and conditions under an employment disability policy must apply to pregnant employees the same as they apply to all other employees. Those legal decisions later officially became part of the Iowa Civil Rights Act.</p>
<p>McQuistion specifically asserted that the Iowa Civil Rights Act mandated that any employment policy maintained by an employer in Iowa that allows light duty for any disabled employees must also unconditionally apply to pregnant employees. Consequently, she claimed an employer discriminates against pregnant employees by failing to include them unconditionally in a disability policy applicable to any disabled employees. Since the City in this case did maintain a policy that permitted light-duty assignments for employees who were injured on the job and for pregnant police officers, McQuistion asserts that the statute mandates the same accommodation be available to all other pregnant employees. But the court had a different analysis. This Iowa Civil Rights Act does not specifically cover the situation in this case in which the terms and conditions for light duty applicable to all temporarily disabled employees result in the exclusion of all disabled employees who did not become disabled through a work-related injury, including employees disabled because of pregnancy or related conditions. Instead, the question of whether a particular term or condition applicable to all disabilities serves to discriminate against disabilities due to pregnancy is to be decided under a different analysis.</p>
<p>The court thus rejected the argument by McQuistion that the legislature established as facially discriminatory any exclusion of a pregnant employee from any policy or plan that provides benefits for any other temporary disability. Instead, the legislature only established that the exclusion of pregnant employees and applicants by an employment policy or practice because of their pregnancies constituted prima facie evidence of discrimination. Upon such proof by the employee, the employer may then come forward with a legitimate, nondiscriminatory reason for the exclusion that the claimant can rebut with evidence that the proffered reasons are pretextual. Employment policies and practices that do not expressly target pregnant employees or applicants may still result in pregnancy discrimination.</p>
<p>This case just leaves two types of pregnancy discrimination under state law. First, if a policy might also apply to pregnant employees, the employer cannot specifically exclude pregnant employees from that policy. But that wasn't the case in <em>McQuistion </em>because the employer's policy excluded anyone whose disability occurred because of events outside the job, like a pregnancy. Therefore that employer treated pregnant employees no differently than any other employee who was injured outside the job. That leaves a pregnant employee in that situation a second possibility, which is to argue that an otherwise neutral policy is being intentionally applied against pregnant employees in a discriminatory manner.</p>
<p>Please feel free to contact us if you need the assistance of a <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">Des Moines employment lawyer</a>.</p>Wed, 30 Dec 2015 06:00:00 +0000http://erbelaw.com/blog/posts/iowa-supreme-court-clarifies-state-pregnancy-discrimination-law
Winter Driving Tips<p><img data-rel="225x255" alt="Article 1242868 07 D8 D03 C000005 Dc 13 634x491" title="Article 1242868 07 D8 D03 C000005 Dc 13 634x491" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDUvMjMvNTYvNDY1L2FydGljbGVfMTI0Mjg2OF8wN0Q4RDAzQzAwMDAwNURDXzEzXzYzNHg0OTEuanBnIl0sWyJwIiwidGh1bWIiLCIyMjV4MjU1PiJdLFsicCIsInN0cmlwIl1d/article-1242868-07D8D03C000005DC-13_634x491.jpg" width="225" height="174" /></p>
<p>Although it may seem like it will never happen this winter, at some point there will probably be another snowfall. The result will be messy and dangerous road conditions and increase the possibility of <a title="Car Accidents" href="/practice-areas/car-accidents">car accidents</a> and <a title="Trucking Accidents" href="/practice-areas/car-accidents/trucking-accidents">truck accidents</a>. Here are some snow-specific tips to avoid trouble.</p>
<ul><li>Make sure your tires are properly inflated. The tires are the only part of your vehicle in contact with the ground. Tires become even more important when they are in contact with a snow-covered instead of a dry surface.</li>
<li>Do not use your cruise control when driving on wet, icy, or snow-covered surfaces.</li>
<li>Accelerate and decelerate in a controlled manner and with care. Do so slowly. Slowly applying the gas to accelerate helps with regaining traction and avoiding skids is the best method for regaining traction and avoiding skids. And remember that stopping time is increased when road conditions worsen. Be careful in heavy traffic and when approaching intersections. </li>
<li>Drive slowly too. Everything, including turning, is more difficult and takes longer in winter driving conditions. Driving slower will help compensate for the fact that your vehicle is unlikely to move as well or respond as quickly as it would in dry conditions.</li>
<li>With those tips goes the recommendation to double your following distance behind other vehicles. That will allow the extra time necessary to stop your vehicle in winter conditions.</li>
<li>Avoid stopping your vehicle as much as possible. It is much more difficult to get a stopped car moving forward on a winter road than one that is still rolling slowly. For example, if you are approaching a red light, slow down as safely as possible so that the light may turn green before you have to stop, allowing you to avoid stopping at the red light.</li>
<li>If possible, plan your route to avoid steep or long hills. Hills can be a nightmare in the snow. If you do find yourself on a steep or long hill, avoid excessive acceleration. That can cause your vehicle to spin out because of the extra power necessary to speed it up a hill. Instead, try to gather a little inertia while approaching the hill and gently accelerate only if necessary to crest it. Likewise, stopping on a hill will cause many vehicles to become stuck. If traffic is heavy and your car has a tendency to become stuck if it stops on a hill, choose a different route to avoid become stuck on a hill when traffic stops in front of you, leaving you nowhere to go.</li>
</ul>
<p>The best tip is to stay home if you have no compelling or mandatory reason to challenge a heavy snowfall before the roads are cleared. You may be a great winter driver. You may have a great vehicle that handles snowy roads like they are dry pavement. But other drivers may not be in as good of a situation as you are. A winter driving accident and the resulting <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">personal injuries</a> can be just as bad regardless of who is at fault.</p>Mon, 21 Dec 2015 06:00:00 +0000http://erbelaw.com/blog/posts/winter-driving-tips
The Iowa Supreme Court Knows The Value Of A Dollar, And It's Not Fair Compensation For Pain And Suffering<p><img data-rel="225x255" alt="Car" title="Car" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMTcvNDYvMjU2L2Nhci5qcGciXSxbInAiLCJ0aHVtYiIsIjIyNXgyNTU%2BIl0sWyJwIiwic3RyaXAiXV0/car.jpg" width="170" height="255" /></p>
<p>On December 11, 2015 the Iowa Supreme Court issued a decision, <em>Kevin Bryant v. Lori Lynn Parr</em>, in which it ruled that $1 was insufficient compensation for pain and suffering in a <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">personal injury</a> case arising out of a <a title="Car Accidents" href="/practice-areas/car-accidents">car accident</a>. In <em>Bryant</em>, the jury awarded the plaintiff $17,000 in compensatory damages for past medical expenses, but only $1 for pain and suffering. Although a car accident case, the legal principles discussed in <em>Bryant </em>also have application to <a title="Drunk Driving Accidents" href="/practice-areas/car-accidents/drunk-driving-accidents">drunk driving accidents</a>, <a title="Trucking Accidents" href="/practice-areas/car-accidents/trucking-accidents">trucking accidents</a>, <a title="Pedestrian Accidents" href="/practice-areas/personal-injurywrongful-death-law/pedestrian-accidents">pedestrian accidents</a>, <a title="Bicycle Accidents" href="/practice-areas/personal-injurywrongful-death-law/bicycle-accidents">bicycle accidents</a>, <a title="Train And Railroad Accident Law" href="/practice-areas/personal-injurywrongful-death-law/train-and-railroad-accident-law--3">railroad accidents</a>, <a title="Motorcycle Accident Law" href="/practice-areas/motorcycle-accident-law">motorcycle accidents</a>, <a title="Boating Accidents" href="/practice-areas/personal-injurywrongful-death-law/boating-accidents">boating accidents</a>, <a title="Products Liability/Product Warranty Law" href="/practice-areas/products-liabilityproduct-warranty-law">products liability cases</a>, <a title="Fire And Explosion Law" href="/practice-areas/personal-injurywrongful-death-law/fire-and-explosion-law">fire and explosion cases</a>, <a title="Premises Liability Law" href="/practice-areas/personal-injurywrongful-death-law/premises-liability-law">premises liability cases</a>, <a title="Dog Bite Law" href="/practice-areas/dog-bite-law">dog bite cases</a>, and <a title="Nursing Home Injuries" href="/practice-areas/nursing-home-injuries">nursing home injury cases</a>.</p>
<p>The court noted that a dollar constitutes nominal damages. Generally, nominal damages are not recoverable in cases in which damages are an element of the cause of action. Because damages are an element of a negligence or comparative fault action, nominal damages should not be awarded. If a party has suffered personal injury as a result of another’s negligence or fault, the injured party is entitled to actual or substantial damages, not nominal damages. Nominal damages are allowed, not as an equivalent for the wrong, but in recognition of a technical injury and by way of declaring a right and are not the same as damages small in amount.</p>
<p>In the court's view, "[i]t is illogical to award past and future medical expense incurred to relieve headache, neck and back pain and then allow nothing for such physical and mental pain and suffering. Having determined that these medical expenses were recoverable, there seems no way for the jury to disallow recovery for the appellant’s pain and suffering for the same injuries. Although the award may be adequate, a special verdict award of nothing for pain and suffering is inconsistent and unsupported by evidence."</p>
<p>On the other hand, an award for pain and suffering but $0 for medical expenses is considered a consistent verdict and will be upheld. That's because it's possible for a jury to logically conclude that a person was hurt because of an accident but that the person didn't require medical care as a result. It follows that the jury could permissibly award damages for pain and suffering but not for medical expenses.</p>
<p>On the specific facts of the <em>Bryant</em> case, the court decided that $1 for pain and suffering was inconsistent and improper after the jury decided that Bryant should recover $17,000 in lost wages plus lost wages for work missed because of the car accident. The jury could have found that Bryant suffered only minimal injuries in the accident and exaggerated his complaints of pain to his doctors. The $17,000 in medical expenses the jury awarded for for many months of post-accident medical treatment, specifically pain. The jury's award of lost wages also indicated that it believed that Bryant's injuries were severe and painful enough that he should be compensated for missing work as a result. Those decisions by the jury were inconsistent with its verdict of only $1 for pain and suffering. Bryant would thus receive a new trial for a proper determination of his damages.</p>Thu, 17 Dec 2015 13:56:00 +0000http://erbelaw.com/blog/posts/the-iowa-supreme-court-knows-the-value-of-a-dollar-and-it-s-not-fair-compensation-for-pain-and-suffering
Telling A Co-Worker That Your FMLA Leave Is A Scam Is A Bad Idea<p><img data-rel="225x255" alt="Financial Stress" title="Financial Stress" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMDMvMDYvNjk4L2ZpbmFuY2lhbF9zdHJlc3MuanBnIl0sWyJwIiwidGh1bWIiLCIyMjV4MjU1PiJdLFsicCIsInN0cmlwIl1d/financial-stress.jpg" width="225" height="169" /></p>
<p>Manager Keith Curtis wasn't meeting his employer's expectations. There was a good possibility that he'd be demoted or fired if he didn't shape up. So Curtis decided to do everything he could to retain his managerial position -- He'd fraudulently seek leave under the Family and Medical Leave Act with the theory that his employer couldn't demote him while he was on FMLA leave. That was the situation that confronted the court in the <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">employment law</a> case of <em>Curtis v. Costco.</em>
</p>
<p>Keith Curtis was an optical manager for a Costco store. He was on a performance improvement plan. An employee working under Curtis in the optical department informed Costco managerial staff that she was concerned that Curtis was going to "scam" the company. She said that Curtis told her he intended to take a medical leave to secure his managerial rate of pay and position in the event of demotion. Costco determined that, by this comment, Curtis had violated its Manager Standard of Ethics.&#160; Curtis was consequently demoted from optical manager to cashier. Two days later, Curtis requested and received FMLA leave.&#160; </p>
<p>Curtis later sued for, among other things, FMLA retaliation concerning Costco's handling of his FMLA situation. Curtis argued that Costco violated the FMLA when it demoted him in retaliation for "engag[ing] in FMLA-protected activity." Curtis further maintained that the "FMLA-protected activity" was his comment to his subordinate that he was contemplating medical leave.</p>
<p>The court first considered whether Curtis's comment to his subordinate constituted sufficient notice under the FMLA and whether the comment qualified as protected activity. The FMLA requires employees to give notice at least 30 days in advance when the need for the leave is foreseeable. In the event 30-days notice cannot be given due to extenuating circumstances, notice must be given as soon as practicable. If an employee fails to give proper notice, an employer may deny the leave. The burden of giving proper notice is on the employee. The employee must give the employer enough information to believe that the employee is entitled to FMLA leave. The burden then shifts to the employer to request additional information as needed. </p>
<p>The court decided that Curtis's comment to his subordinate did not constitute sufficient FMLA notice to Costco. Even if that comment could be considered sufficient FMLA notice, the court was concerned that the subordinate stated that Curtis wanted to "scam" Costco. Activity that might normally receive FMLA protection loses that protection when it is fraudulent. The court ruled that, regardless of whether Curtis's comment could be construed as providing sufficient notice for FMLA purposes, this particular comment fell outside the scope of protected activity, given the fact that Costco acted on information that Curtis's subordinate provided to management — namely, her concern that Curtis intended to "scam" the company by taking a fraudulent medical leave.</p>
<p>Curtis's FMLA retaliation claim failed for the additional reason that, even assuming that his statement to his subordinate constituted protected activity under the FMLA, he couldn't prove that his demotion was related to that comment. There must be a connection between the FMLA protected activity and the adverse employment action. Costco submitted evidence that, before Curtis's demotion, he faced several performance issues, including customer complaints, violation of Costco's dress code, and failing to perform managerial duties. He also made the "scam" comment to his subordinate. In sum, the evidence was overwhelming that Curtis's demotion occurred because of performance issues and misconduct, not because of his FMLA comment to his subordinate.&#160; </p>
<p>Please feel free to contact us if you need the assistance of a <a title="Family And Medical Leave Act (FMLA) Law" href="/practice-areas/employment-labor-law/family-and-medical-leave-act-fmla-law">Des Moines FMLA lawyer</a>.</p>Wed, 09 Dec 2015 12:28:00 +0000http://erbelaw.com/blog/posts/telling-a-co-worker-that-your-fmla-leave-is-a-scam-is-a-bad-idea
Don't Forget To Switch Your Car Insurance To Your New Cars<p><img data-rel="225x255" alt="Insurance 290x230" title="Insurance 290x230" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMTMvNDgvMzg0L2luc3VyYW5jZV8yOTB4MjMwLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/insurance-290x230.jpg" width="225" height="179" /></p>
<p>Buying a new car (or a new used car) can be quite complicated and a little overwhelming. There are a lot of forms to complete, and that's just for the actual sale of the vehicle. The complexity increases if you're also trading in your old car or are getting a car loan.</p>
<p>In all the excitement about having a new vehicle and the flurry of paperwork that comes with it, don't forget about insuring your shiny new purchase. That's easy to remember if it's your first car or a car that you're adding without a trade-in. But switching insurance coverage to a new vehicle after trading in an old one is something that's easy to miss and can have serious consequences later on.&#160; </p>
<p>If not quickly remedied, failure to switch insurance coverage from your old vehicle to your new one can cause the loss of any insurance coverage on your new vehicle. That of course can be fixed if you realize the problem and secure insurance coverage for your new car before you have any need for insurance coverage. But that's an easy problem to miss because, without notice to the contrary, your insurer may continue to send premium statements for the coverage on your old vehicle as if you still owned it. That could in turn create the false impression that you have coverage on your new vehicle when in fact you don't.&#160; </p>
<p>The trouble arises when, assuming that you have insurance coverage on your new car, you make an insurance claim. Perhaps your car's stolen, you're in a <a title="Car Accidents" href="/practice-areas/car-accidents">car accident</a>, <a title="Motorcycle Accident Law" href="/practice-areas/motorcycle-accident-law">motorcycle accident</a>, or <a title="Trucking Accidents" href="/practice-areas/car-accidents/trucking-accidents">truck accident</a> and need collision coverage, or, worst of all, you're at fault in an accident and find out that you have no liability insurance coverage for <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">personal injuries</a> to the other driver, <a title="Pedestrian Accidents" href="/practice-areas/personal-injurywrongful-death-law/pedestrian-accidents">pedestrian</a>, or <a title="Bicycle Accidents" href="/practice-areas/personal-injurywrongful-death-law/bicycle-accidents">bicyclist</a> or property damage to the other vehicle.&#160; That's when you find out that, after trading in your old vehicle, coverage wasn't switched to your new one and you're now exposed to potentially catastrophic financial harm and the other criminal and administrative license issues that an uninsured accident can cause. &#160; </p>
<p>So the moral of the story is to make sure that you buy new insurance for or switch your existing coverage to your new vehicle. If you have existing coverage on the car you're trading in, that policy may offer <em>temporary</em> coverage for your new vehicle. But don't delay officially changing your existing insurance coverage to your new vehicle. The grace period for notifying your insurer of your new vehicle and the need to switch coverage varies among insurers and can be as short as seven days. The issue of when coverage can be temporarily extended from an old vehicle to a new one, what type if coverage is extended, and how long that extension lasts is very insurer-specific. Please be sure to review your insurance policy or contact your insurer if you have any questions about that before you drive your new vehicle off the dealership's lot. </p>
<p>If you don't already have insurance coverage, either because you're buying your first car or are adding a vehicle without trading one in, make sure to shop for car insurance while still shopping for your new car. It's important for this purpose to have an idea of what car models you'll be considering so you can get an accurate insurance quote. You don't want to buy a new car only to find out that insurance coverage for it is unaffordable. </p>
<p>Please feel free to contact us if you need the assistance of a <a title="Insurance Law" href="/practice-areas/insurance-law">Des Moines insurance lawyer</a>.</p>Wed, 02 Dec 2015 12:29:00 +0000http://erbelaw.com/blog/posts/don-t-forget-to-switch-your-car-insurance-to-your-new-cars
Revisiting Iowa's Uniform Trade Secrets Act -- A Deeper Look At What Constitutes A "Trade Secret"<p><img data-rel="225x255" alt="Office" title="Office" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDMvNDcvMzMvMjIyL09mZmljZS5qcGciXSxbInAiLCJ0aHVtYiIsIjIyNXgyNTU%2BIl0sWyJwIiwic3RyaXAiXV0/Office.jpg" width="170" height="255" /></p>
<p>In a previous <a target="_blank" title="http://www.erbelaw.com/blog/posts/iowa-s-uniform-trade-secrets-act" href="http://www.erbelaw.com/blog/posts/iowa-s-uniform-trade-secrets-act">post</a> about Iowa's Uniform Trade Secrets Act (Iowa Code Chapter 550), I noted that whether something actually constitutes a trade secret is often a heavily contested issue in such cases. Iowa's courts have spilled a lot of ink over that question. Let's take a look at it.</p>
<p>As I noted in my earlier post, a <a title="Business Practices &amp; Contract Law" href="/practice-areas/business-practices-contract-law">trade secret</a> can consist of a formula, pattern, compilation of data, computer program, device, method, technique, process, or other form or embodiment of economically valuable information. A trade secret can relate to technical matters such as the composition or design of a product, a method of manufacture, or the know-how necessary to perform a particular operation or service. A trade secret can also relate to other aspects of business operations such as pricing and marketing techniques or the identity and requirements of customers.&#160; Although a trade secret can consist of a patentable invention, there is no requirement that the trade secret meet the standard of inventiveness applicable under federal patent law. </p>
<p>The value of the information for which trade secret protection is sought must be substantial. A trade secret must be of sufficient value in the operation of a business or other enterprise to provide an actual or potential economic advantage over others who do not possess the information. But the advantage need not be great. It is sufficient if the secret provides an advantage that is more than trivial. </p>
<p>Nondisclosure and confidentiality agreements are relevant to determining whether information constitutes a trade secret. An agreement between the parties that characterizes specific information as a "trade secret" can be an important, although not necessarily conclusive, factor in determining whether the information qualifies for protection as a trade secret. As a precaution against disclosure, such an agreement is evidence of the value and secrecy of the information, and can also supply or contribute to the definiteness required in delineating the trade secret. The agreement can also be important in establishing a duty of confidence. </p>
<p>Trade secret claims often arise as a matter of <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">employment law</a>. During employment, an employee may acquire two classes of information. First, an employee may obtain information of a general nature simply by being on the job. An employer would have no reasonable expectation that such information would be treated as a trade secret. An employee is free to use or disclose this type of general information. The second class of information is that which the employer intends to keep secret by, for example, requiring confidentiality. While the first class of information is not entitled to trade-secret protection, the second class may be entitled to it.&#160; A trade secret need not be in writing; any secret acquired through an employee's job may be the subject of trade-secret protection. </p>
<p>Whether an employee is subject to a covenant not to compete is not determinative of whether the information gathered through employment constitutes a trade secret. As a general rule, an employee who has not signed an agreement not to compete is free, upon leaving employment, to engage in competitive employment. In so doing, the former employee may freely use general knowledge, skills, and experience acquired under his or her former employer. But the former employee, even in the absence of an enforceable covenant not to compete, remains under a duty not to use or disclose, to the detriment of the former employer, trade secrets acquired in the course of previous employment. When the former employee seeks to use the trade secrets of the former employer in order to obtain a competitive advantage, then competitive activity can be enjoined or result in an award of damages. </p>Wed, 25 Nov 2015 12:30:00 +0000http://erbelaw.com/blog/posts/revisiting-iowa-s-uniform-trade-secrets-act-a-deeper-look-at-what-constitutes-a-trade-secret
Female-On-Male Sexual Harassment<p><img data-rel="225x255" alt="Office" title="Office" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDMvNDcvMzMvMjIyL09mZmljZS5qcGciXSxbInAiLCJ0aHVtYiIsIjIyNXgyNTU%2BIl0sWyJwIiwic3RyaXAiXV0/Office.jpg" width="170" height="255" /></p>
<p>When you hear about <a title="Unlawful Harassment And Hostile Work Environment" href="/practice-areas/employment-labor-law/unlawful-harassment-and-hostile-work-environment">sexual harassment</a>, you probably immediately think of men harassing women.&#160; That's understandable. Most news stories about sexual harassment involve female victims. Most studies about sexual harassment have been concerned with how it affects women.&#160; </p>
<p>But men can be the victims of sexual harassment too. You might recall Michael Crichton's book <em>Disclosure </em>and the movie of the same name. That was a story about a female superior who was accused of sexually harassing her male subordinate. Female-on-male sexual harassment occurs in the real world as well. It violates <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">employment laws</a> against sexual harassment same as male-on-female harassment does. </p>
<p>Since the dawn of the theory of "sexual harassment," women have been more likely to report incidents of harassment. For a long time men simply kept quiet if they were victims of sexual harassment by a woman. But reports of female-on-male sexual harassment are increasing, although they aren't yet at the level for male-on-female harassment.&#160; </p>
<p>Data from the United States Equal Employment Opportunity Commission indicates that the number of men filing sexual harassment claims is approaching 20% of all such claims. That's approximately double the number of male sexual harassment claims filed with the EEOC since the agency began tracking the numbers in 1992. It should be noted though that this data doesn't tell us the sex of the accused in male sexual harassment complaints. It's very likely that a good portion of sexual harassment claims filed by males involve male-on-male, or same-sex, harassment.</p>
<p>So why are male sexual harassment claims increasing? That's of course impossible to pin on any one factor. But various experts have identified a few different possibilities. First, there has been increased media attention given to male sexual harassment claims, beginning with, as I mentioned, the book <em>Disclosure </em>and the more widely known movie based on the book. Second, in 1998 the United States Supreme Court ruled that men can sue for male-on-male sexual harassment. That of course opened the doors for such claims by men, but it likely also demonstrated that there's no reason for men to also avoid pursuing claims for female-on-male sexual harassment. Third, there are more female supervisors in the workplace than ever before, which means that it's no longer just male supervisors who have the opportunity to harass their female subordinates (think Demi Moore in <em>Disclosure</em>). Fourth, data indicates that the recent recession resulted in the elimination of more men from the workforce than woman. In short, not only is there a greater possibility for female-on-male sexual harassment given changing workforce demographics and landscapes, but both the courts and society have become more receptive to the concept of men filing sexual harassment claims. </p>
<p>Men have reported the same types of sexual harassment that women experience. One category of sexual harassment is <em>quid pro quo </em>harassment, which occurs when workplace threats (such as getting fired) or bribes (such as a promotion), are made in an attempt to force unwilling employees into a sexual relationship with the harasser. Another is a hostile work environment, which can include a lot of things, such as unwelcome sexual comments, unwelcome sexual attention, unwelcome sexual touching, sexually offensive behavior, and even threats.&#160; </p>
<p>Female-on-male sexual harassment will likely never rise to the level of male-on-female harassment. Studies indicate that men are much more likely to engage in sexual harassment than woman. But that doesn't lessen the impact on the rare male sexual harassment victim though.</p>
<p>Please feel free to contact us if you believe you've been the victim of male-on-male or female-on-male sexual harassment at the workplace.</p>Fri, 20 Nov 2015 14:19:00 +0000http://erbelaw.com/blog/posts/female-on-male-sexual-harassment
Iowa Court Of Appeals Saves Builder In A Construction Defect Case That Got A Little Weird<p><img data-rel="225x255" alt="House" title="House" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDMvMjEvMTIvMTYzL0hvdXNlLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/House.jpg" width="170" height="255" /></p>
<p>So what do you do if you're a building contractor and the structure you're building collapses? Why blame the company that supplied the roof trusses of course! That was the situation before the Iowa Court of Appeals in the November 12, 2015 case of <em>Dinsdale Construction, L.L.C. v. Lumber Specialties, Ltd.</em>
</p>
<p>Lumber Specialties supplied various products, including roof trusses, for a new building. Dinsdale Construction was the builder. The building collapsed during construction. The building's collapse was caused by inadequate temporary bracing of the roof trusses.</p>
<p>Now, this sounds like a standard <a title="Construction Defect Law" href="/practice-areas/construction-defect-law">construction defect</a> case. Dinsdale Construction, the builder, didn't properly brace the roof trusses during construction. The building thus collapsed.&#160; But things took an unexpected turn when Dinsdale Construction sued Lumber Specialties and blamed it for giving bad advice about the temporary bracing of the roof trusses during construction.</p>
<p>Dinsdale Construction's claim against Lumber Specialties arose because Lumber Specialties provided in-house engineering services, something that's commonly done by third parties, not the product manufacturer. A Lumber Specialties employee also visited the site during construction to evaluate the temporary bracing of the roof structures. That employee told Dinsdale Construction that everything looked fine and it should continue what it was doing.</p>
<p>Dinsdale Construction sued Lumber Specialties under a fairly rare legal theory, "<a title="Business Practices &amp; Contract Law" href="/practice-areas/business-practices-contract-law">negligent misrepresentation</a>." The jury returned a verdict that found Lumber Specialties mostly at fault for the building's collapse. Lumber Specialties appealed.</p>
<p>Dinsdale Construction sued Lumber Specialties asserting that Lumber Specialties’s employee, Ryan Callaway, negligently misrepresented the<br />adequacy of the temporary bracing supporting the roof trusses when he visited the site during construction. Negligent misrepresentation is defined as “one who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.” When a negligent misrepresentation doesn't result in personal injuries or property damage, liability is restricted to only those who are in the business of supplying information to others. Because the building collapse didn't cause personal injuries and property damage (other than to the building itself), the fighting issue was whether Lumber Specialties was in the business of supplying information to others and thus exposed to liability for negligent misrepresentation.</p>
<p>The factors courts consider in determining whether a person is “in the business of supplying information” include: (1) whether the relationship between the parties is at arm’s-length and adversarial or advisory; (2) whether the person providing the information is manifestly aware of the use that information will be put and intends to supply it for that purpose; (3) whether the information is given gratuitously or incidental to a different service; and (4) what role the defendant was playing when the misrepresentation occurred. Lumber Specialties asserted that it did not owe a duty to Dinsdale Construction under a negligent misrepresentation claim because Lumber Specialties is not in the business of supplying information. It claimed that the advice Ryan Callaway offered regarding the temporary bracing was incidental to, or gratuitously provided as part of, the sale of its product—roof trusses. Dinsdale Construction countered that Lumber Specialties owed it a duty in light of the fact that it did not just supply a product—the trusses—but also provided information—engineering services.</p>
<p>The Iowa Court of Appeals decided that, under the "unique" facts of the case, Lumber Specialties could be liable for negligent misrepresentation to Dinsdale Construction. When Lumber Specialties gave advice to Dinsdale Construction about the installation of its product, it was in the business of supplying information such that it owed a duty to exercise care in giving that advice to Dinsdale Construction. Through its agent, Ryan Callaway, Lumber Specialties voluntarily offered the advice about the adequacy of the temporary bracing in response to a specific inquiry about the temporary bracing of the roof trusses. The contract at issue, between Lumber Specialties and Moeller &amp; Walter, involved both the purchase of a product—roof trusses—and also the purchase of information— engineering services. After the purchase, Lumber Specialties employee, Steven Kennedy, provided advice and information regarding the steps involved in applying the permanent bracing for the structure. In addition, the advice in question was given by someone (Ryan) who was aware of the reason for the request and intended to supply the information for an expressed purpose, and the advice was not given gratuitously. Moreover, Lumber Specialties was manifestly aware of how the information would be used and intended to supply it for that purpose. Lumber Specialties was in a unique position as the supplier of both the product and the information of how to install the product. In sum, when Lumber Specialties agreed to and did provide an opinion to Dinsdale Construction regarding the temporary bracing of the roof trusses, it owed a duty to provide accurate information and could be liable for negligent misrepresentation.</p>Fri, 13 Nov 2015 14:16:00 +0000http://erbelaw.com/blog/posts/iowa-court-of-appeals-saves-builder-in-a-construction-defect-case-that-got-a-little-weird
Iowa Court Of Appeals Throws Cold Water on Rear-End Car Crash Cases<p><img data-rel="225x255" alt="Car" title="Car" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMTcvNDYvMjU2L2Nhci5qcGciXSxbInAiLCJ0aHVtYiIsIjIyNXgyNTU%2BIl0sWyJwIiwic3RyaXAiXV0/car.jpg" width="170" height="255" /></p>
<p>It's commonly thought that driver of the rear vehicle in a rear-end <a title="Car Accidents" href="/practice-areas/car-accidents">car accident</a> is automatically at fault for the collision. While that general belief is often proved true, in some instances the driver of the rear vehicle escapes liability. The recent Iowa Court of Appeals decision of <em>Daniel Griggs v. Nancy Schramm </em>was one such case.</p>
<p>Nancy Schramm rearended Daniel Griggs. The evidence showed Schramm’s vehicle collided with the rear of Griggs’s vehicle after Griggs stopped at a controlled intersection. Schramm applied her brakes before the collision. Nonetheless, the front license plate of her vehicle contacted the trailer hitch on the rear of Griggs’s vehicle. A detective happened on the scene, investigated the accident, and issued Schramm a citation for failure to keep an assured distance. Griggs drove himself from the accident to the hospital, presenting with back pain. Eventually, at a much later date, Griggs underwent surgery to address injuries he claimed he sustained in the accident with Schramm.</p>
<p>Griggs sued Schramm for personal injuries. The jury returned a defense verdict in Schramm's favor. The trial court denied Griggs's motion for a new trial.&#160; Griggs appealed.</p>
<p>Griggs contended that the jury’s finding that Schramm was not at fault was not supported by the evidence. He argued that the jury could not have exonerated Schramm’s negligence because the undisputed evidence showed that Schramm collided with the rear of his vehicle while he was properly stopped at a controlled intersection. The court rejected Griggs's argument.&#160; </p>
<p>The court first noted that the mere fact that an accident happened does not necessarily mean that the defendant was negligent. That includes rear-end collisions. Whether the defendant in a rear-end collision case is liable depends upon all of the facts and circumstances of the collision, not just the fact that the defendant struck the plaintiff's vehicle in the rear.&#160;&#160; </p>
<p>The court also thought that the jury instructions were problematic for Griggs and gave him a very narrow window for a finding of liability against Schramm. The only specification of negligence submitted to the jury was whether Schramm was negligent in driving a vehicle at a speed greater than would permit her to stop within the assured clear distance ahead. The court decided that there was sufficient evidence for the jury to determine that Schramm was not traveling at a negligent rate of speed. The evidence in that regard included (1) the minimal property damage to both vehicles; (2) Schramm's testimony that she was traveling at a low rate of speed; (3) a defense expert who opined that Schramm was traveling at a low rate of speed; and (4) the lack of skid marks. </p>
<p>One takeaway from this case is that accident victims should try to present juries with a broader series of negligence specifications than in <em>Griggs</em>. If a jury is told that speed is the only issue, and the jury concludes that the defendant wasn't driving with negligent speed, the plaintiff loses even if the defendant may have been negligent in some other manner. A possible way to avoid that problem is to also accuse the defendant of failing to keep a proper lookout. That's a very common cause of car accidents. That way, even if the jury has no concerns with the defendant's speed, it still has the option of finding the defendant negligent for failing to keep a proper lookout, regardless of the defendant's speed at the time of the crash.</p>
<p>Please feel free to contact us if you need the assistance of a <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">Des Moines personal injury lawyer</a>.</p>Wed, 04 Nov 2015 06:00:00 +0000http://erbelaw.com/blog/posts/iowa-court-of-appeals-throws-cold-water-on-rear-end-car-crash-cases
Iowa Court Of Appeals Issues New Whistleblower Retaliation Decision<p><img data-rel="225x255" alt="Financial Stress" title="Financial Stress" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMDMvMDYvNjk4L2ZpbmFuY2lhbF9zdHJlc3MuanBnIl0sWyJwIiwidGh1bWIiLCIyMjV4MjU1PiJdLFsicCIsInN0cmlwIl1d/financial-stress.jpg" width="225" height="169" /></p>
<p>On October 14, 2015 the Iowa Court of Appeals issued an interesting <a title="Wrongful Termination Law" href="/practice-areas/employment-labor-law/wrongful-termination-law">wrongful termination</a> decision, <em>Jacob Hackman v. New Hampton Municipal Light Plant</em>, concerning alleged retaliation against a public employee whistleblower. Jacob Hackman worked for the New Hampton Municipal Light Plant. The city of New Hampton owned the plant.&#160; Hackman discovered a scheme in which some employees sold the plant’s scrap metal for cash. The scrap metal belonged to the plant and, by extension, its owner, the city of New Hampton, but the employees would retain the sale proceeds and use the money for purposes unrelated to the plant's operation. </p>
<p>Hackman reported this scheme to a member of the plant's board of trustees. He also cooperated in a law enforcement investigation into the cash-for-scrap-metal scheme. After those events occurred, the plant terminated Hackman's employment, supposedly for lack of available work.</p>
<p>Hackman then sued. He asserted claims for for retaliatory wrongful discharge and a violation of Iowa’s public employee whistleblower statute, Iowa Code 70A.29. A jury returned a verdict in his favor. The New Hampton Municipal Light Plant appealed.</p>
<p>The plant’s first two claims on appeal maintained that Hackman should not be protected either as a whistleblower pursuant to Iowa Code 70A.29 or under the public-policy exception to the plant’s right to discharge an employee at will. The plant predicated its challenge on the fact that Hackman purportedly blew the whistle on his own misconduct (he had accepted $1,000 cash that he knew came from one of the illegal scrap sales), thus placing him outside the scope of the intended protections for whistleblowers. The Court of Appeals noted that the plant's argument might have merit if Hackman had not reported the misconduct of <em>others </em>regarding the illegal sales of scrap. Consequently Hackman could be protected as a whistleblower, notwithstanding his acceptance of cash derived from an illegal scrap sale, because he reported the wrongdoing of other both internally within the plant and externally to law enforcement.</p>
<p>
The plant also contended that Hackman did not "disclose" any information when he reported the scrap metal scheme because the pertinent information had already been disclosed by a co-worker. The plant argued that the term "disclose" could only mean the revelation of otherwise hidden information for the first time. Therefore, Hackman could not have disclosed the misconduct because his co-worker had already done so. The court rejected that argument, not only because it found the argument inapplicable to the specific circumstances in the case, but also because the co-worker's earlier disclosure lacked meaningful specificity and did not include all of the information and evidence that Hackman later disclosed.</p>
<p>The plant final argument on appeal was that it had proved that Hackman's disclosures were not the determining factor in the plant's decision to terminate his employment. Under Iowa law, a wrongful termination plaintiff must prove that the protected conduct was the "determining factor" in the employer's termination decision. A "determining factor" in a decision to discharge an employee is a reason that tips the scales decisively one way or the other, even if it is not the predominant reason behind the employer’s decision.</p>
<p>The plant alleged several facts to support its "determining factor" argument. First, though the other whistleblowing co-worker eventually left the plant, that employee was not terminated. Second, Hackman’s termination occurred seven months after his disclosure. Third, the decision to discharge Hackman was the new plant manager's alone, was preceded by “discipline incidents,” and was purportedly due to a lack of work. The Court of Appeals rejected that argument to because it determined that there was competing evidence in Hackman's favor that a jury could use in deciding that Hackman's whistleblowing was a determining factor in the plant's decision to terminate him.</p>
<p>Please feel free to contact us if you need the assistance of a <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">Des Moines employment lawyer</a>.</p>Wed, 28 Oct 2015 06:00:00 +0000http://erbelaw.com/blog/posts/iowa-court-of-appeals-issues-new-whistleblower-retaliation-decision
Coverage For Alcohol-Related And Drug-Related Deaths Under Accidental Death Benefit Insurance Policies<p><img data-rel="225x255" alt="Insurance 290x230" title="Insurance 290x230" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMTMvNDgvMzg0L2luc3VyYW5jZV8yOTB4MjMwLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/insurance-290x230.jpg" width="225" height="179" /></p>
<p>Different types of insurance policies will pay money to beneficiaries if the insured dies. One such policy is known as an accidental death benefits policy. Although the policies differ from insurer to insurer, the gist is that an accidental death benefit policies pays a "death benefit" to named beneficiaries if the insured accidentally dies while the policy is in effect. That includes deaths in <a target="_blank" title="http://erbe-law-firm.herokuapp.com/practice-areas/car-accidents" href="http://erbe-law-firm.herokuapp.com/practice-areas/car-accidents">car accidents</a>, <a title="Motorcycle Accident Law" href="/practice-areas/motorcycle-accident-law">motorcycle accidents</a>, <a target="_blank" title="http://erbe-law-firm.herokuapp.com/practice-areas/car-accidents/trucking-accidents" href="http://erbe-law-firm.herokuapp.com/practice-areas/car-accidents/trucking-accidents">trucking accidents</a>, <a title="http://erbe-law-firm.herokuapp.com/practice-areas/personal-injurywrongful-death-law/train-and-railroad-accident-law--3" href="http://erbe-law-firm.herokuapp.com/practice-areas/personal-injurywrongful-death-law/train-and-railroad-accident-law--3">train and railroad accidents</a>, <a title="http://erbe-law-firm.herokuapp.com/practice-areas/products-liabilityproduct-warranty-law" href="http://erbe-law-firm.herokuapp.com/practice-areas/products-liabilityproduct-warranty-law">defective product accidents</a>, <a title="Premises Liability Law" href="/practice-areas/personal-injurywrongful-death-law/premises-liability-law">premises liability accidents</a>, <a title="Nursing Home Injuries" href="/practice-areas/nursing-home-injuries">nursing home accidents</a>, and other types of accidents that cause the insured's <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">death</a>.</p>
<p>A common issue under accidental death policies is whether a drug-related or alcohol-related death is covered. At first, you might think that such events are not covered, given that people rarely "accidentally" consume drugs or alcohol. But that's not the question in the eyes of most courts. The real issue is whether the <em>result</em> of the drug or alcohol use, i.e., death, was an accidental or intentional result.&#160; In other words, in the great majority of cases alcohol-related deaths and drug-related deaths will be treated as accidents for purposes of an accidental death benefit policy absent evidence that the decedent committed suicide.</p>
<p>Under Iowa law, an “accident” is an event which, under the circumstances, is unusual and unexpected by the person to whom it happens; the happening of events without the concurrence of the will of the person by whose agency it is caused. It makes no difference whether the deceased person.voluntarily sets in motion the first of a series of events (like consuming drugs or alcohol) that eventually results in death. If the resulting death unexpectedly took place or was produced without design or intention, the death will likely be considered accidental.</p>
<p>The usual rule recognized by most courts is that death that results from the negligent or accidental taking of a harmful drug, or taking a drug in such quantity or prepared in such a way that it is harmful, is generally held to be a death from accident. The same is true for alcohol. Likewise, overdoses, whether caused by a single substance or by fatally mixing two or more substances (like prescription drugs and alcohol), are generally considered to be accidental deaths. </p>
<p>The foreseeability of death resulting from consumption of drugs or alcohol from the insured's standpoint is often an important part of the analysis. The test for foreseeability under an accidental death benefits policy is often phrased as not whether the death was reasonably foreseeable, but whether the death was in fact foreseen by the insured. In order for a drug-related or alcohol-related death to not be considered an accident, the decedent must have intended or expected that his or her conduct would in all probability result in death. The insured's negligence alone is not sufficient to prevent the death from being an accident within the meaning of an accidental death benefits policy. Many cases set a high threshold of likelihood as being necessary concerning whether death was foreseeable to the insured.</p>
<p>Some courts predicate accidental death decisions in drug or alcohol cases in part on the determination that standard insurance policy definitions of “accident,” are ambiguous. It's a fundamental principle of insurance law that any ambiguity or uncertainty in the language of an insurance policy must be resolved in favor of coverage. Also, since the policy is drawn by the insurer, ambiguities are construed against the insurer. Thus, because insurance policy language regarding "accidental death" is often ambiguous regarding whether drug-related and alcohol-related deaths are considered "accidental," courts will construe accidental death policies in favor of coverage in such cases. </p>
<p>Another issue for courts in analyzing whether to allow accidental death benefits in drug or alcohol cases is that many accidental death benefit policies fail to specifically exclude drug or alcohol deaths from the scope of coverage. As one federal court noted in an alcohol death case, "[w]e are also impressed with the reasoning of many of the insurance cases to the effect that the absence of a specific exclusion in the policy drawn by the insurer supports a liberal interpretation of the coverage. It would have been easy in the instant policy to exclude injury caused or contributed to by alcoholism or consumption of alcoholic beverages or drug abuse. The absence of such an exclusion supports a conclusion that unexpected, unforeseen and unanticipated death from acute ingestion of alcohol is an accidental death. "</p>
<p>Please feel free to contact us if you need the assistance of a <a title="Insurance Law" href="/practice-areas/insurance-law">Des Moines insurance law lawyer</a>.</p>Wed, 21 Oct 2015 06:00:00 +0000http://erbelaw.com/blog/posts/coverage-for-alcohol-related-and-drug-related-deaths-under-accidental-death-benefit-insurance-policies
Yes, Employers Can Refuse To Hire You And Can Fire You Based On Your Social Media Activity<p><img data-rel="225x255" alt="Office" title="Office" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDMvNDcvMzMvMjIyL09mZmljZS5qcGciXSxbInAiLCJ0aHVtYiIsIjIyNXgyNTU%2BIl0sWyJwIiwic3RyaXAiXV0/Office.jpg" width="170" height="255" /></p>
<p>We've received a few <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">employment law</a> calls recently that indicate that a discussion of the connection between your social media activity and your employment prospects is necessary. The basic fact is that employers have the right to monitor employees' social media posts. Employees' social media activity can lead to discipline, even firing. Social media posts can also cost employees a chance at a promotion or even prevent them from being hired in the first place.</p>
<p>A review of a person's social media activity may first occur during the hiring process. Employers want to check a job candidates qualifications. They want to ensure that the potential employee will represent the company well. Consequently, most employers conduct background checks of potential employees. Those background checks usually include social media. Social media activity and profiles may offer information on professional achievements, alcohol or drug use, current employment status, judgment and maturity, and other topics that employers are interested in when considering a job candidate.</p>
<p>That employers may job applicants' review social media accounts during the hiring process probably isn't a great revelation to anyone. What does seem to be a revelation is employers' right to monitor the social media activity of current employees and make personnel decisions based on such activity. Generally, employers can fire or otherwise discipline employees for operating a blog or personal website or internet activity that the employer considers inappropriate, even if that internet activity does not occur during work hours or through the employer's internet portal. Common examples of such internet activity includes content that the employer deems offensive to it or clients or customers or puts the business in a bad light.</p>
<p>People will question whether their privacy or First Amendment rights protect their ability to say whatever they want during non-work related internet activity. They'd be wrong, at least in Iowa. Neither federal nor Iowa state law currently prohibit employers from firing or disciplining employees for engaging in lawful non-work related internet activity outside of the worksite. Nor are private sector employees protected by the First Amendment. I wrote about that <a target="_blank" title="https://erbelaw.wordpress.com/2014/01/19/an-analysis-of-the-chris-kluwe-controversy-and-the-right-to-speak-ones-mind/" href="https://erbelaw.wordpress.com/2014/01/19/an-analysis-of-the-chris-kluwe-controversy-and-the-right-to-speak-ones-mind/">here</a>.&#160; </p>
<p>There are three major exceptions to employers' right to monitor employees' private internet activity and make personnel decisions based on such activity. First, employers cannot do so in a <a title="Employment Discrimination Law" href="/practice-areas/employment-labor-law/employment-discrimination-law">discriminatory manner</a>. Internet monitoring, and any personnel decisions based on such monitoring, must occur without regard to the person's race, nationality, sex, gender, age, religion, <a title="Disability Discrimination Law" href="/practice-areas/employment-labor-law/disability-discrimination-law">disability</a>, or sexual orientation. Otherwise employment discrimination or <a title="Wrongful Termination Law" href="/practice-areas/employment-labor-law/wrongful-termination-law">wrongful termination</a> claims may result.</p>
<p>Second, it's possible that internet activity regarding working conditions may be considered "concerted activity" for purposes of state or federal labor (union) laws, such as the National Labor Relations Act. Concerted activity includes communications for the purpose of collective bargaining, mutual aid, or protection among employees. It may violate state or federal labor laws if an employee is disciplined or fired for internet communications that are later determined to be protected "concerted activity."</p>
<p> Finally, all of this applies only to an employee's or job applicant's public posts. Most social media sites allow users to "protect" their posts or keep them private from anyone but people that the user authorizes. An employer may violate the federal Stored Communications Act if it accesses the social media posts of an employee when the employee intended the posts to remain private by adjusting the privacy settings to limit access only to viewers authorized by the employee. Employers who access such posts without authorization, or who have such authorization but intentionally exceed it, may violate federal law. </p>Thu, 15 Oct 2015 11:18:00 +0000http://erbelaw.com/blog/posts/yes-employers-can-refuse-to-hire-you-and-can-fire-you-based-on-your-social-media-activity
Compensability Of Meal Breaks Under Federal Overtime Law When Part Of The Break Time Is Used Traveling To The Break Site<p><img data-rel="225x255" alt="Clock" title="Clock" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDUvMTAvNTkvODg1L2Nsb2NrLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/clock.jpg" width="225" height="207" /></p>
<p>Under federal <a title="Overtime Law" href="/practice-areas/overtime-law">overtime law</a> employers usually don't have to pay employee for meal breaks as long as the break last at least an uninterrupted thirty minutes, sometimes less under special conditions. But rest periods of five to twenty periods are considered compensable working time and must be counted by the employer. Federal law&#160; thus makes the duration of the break the key factor in whether it is classified as the shorter, compensable "rest break" or the longer, noncompensable "meal period." The reason for the time distinction is that a shorter break is deemed to predominately benefit the employer by giving the company a reenergized employee. </p>
<p>In <em>Naylor v. Securiguard, Inc. </em>a federal appeals court recently encountered an unusual <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">employment law</a> question at the intersection of noncompensable meal breaks and compensable rest breaks. Securiguard provides security services. Its guards receive two thirty minute meal breaks per shift. The overtime issue arose because Securiguard required its employees to travel to eat at a designated break area.&#160; That travel time counted as part of the employees' thirty-minute breaks. Some of the guards had twelve minutes of travel time, leaving them with only an eighteen-minute break. The guards were required to use the company car to reach the designated break locations that were not within walking distance. While in the car they were prohibited from eating, drinking, smoking, or talking on their cell phones.</p>
<p>The guards argued that the time they were required to travel to reach their designated break areas reduced their meal break time. They thus received less than a thirty minute meal break. Their contention was that breaks of less than thirty minutes are generally considered compensable working time. It followed that Securiguard should have paid them for those meal breaks that were less than thirty true minutes when travel time was factored.&#160; </p>
<p>The appeals court did not see the issue as so black and white. It noted that employees frequently must move to some extent to a designated break area before eating their meal. They thus don't always have a chance to eat for the full thirty-minute meal break. To the extent this transition time amounts to no more than a couple of minutes, it is incidental and does not undermine the noncompensable nature of the break. But at some point employer-mandated transition time becomes substantial enough that it may make the break more like the shorter, compensable "rest" period. </p>
<p>The court agreed with Securiguard regarding employees who had only a one-minute travel time to a designated break area. The court viewed the travel time as incidental and not defeating the noncompensable nature of the meal break. Those employees therefore lost their overtime case.</p>
<p>The court reached a different conclusion for those employees who had a twelve-minute roundtrip between their assigned duty station and the nearest designated break area, thus leaving those employees with only eighteen minutes to eat. The court stated that "[a] requirement that deprives the employee of the opportunity to eat during 40% of a thirty-minute break thus strikes at the heart of what we and other courts have recognized as the most important consideration: an employee's ability to use the time 'for his or her own purposes.' " Consequently a jury could find that preventing the employee from eating—ostensibly the main purpose of the break—for twelve out of thirty minutes during every break is a meaningful limitation on the employee's freedom. If that was the jury's conclusion, that would leave this category of employees with only an eighteen-minute, compensable meal break instead of a thirty-minute noncompensable meal break.</p>Wed, 07 Oct 2015 06:00:00 +0000http://erbelaw.com/blog/posts/compensability-of-meal-breaks-under-federal-overtime-law-when-part-of-the-break-time-is-used-traveling-to-the-break-site
Revisiting The "Interactive Process" Under The Americans With Disabilities Act<p><img data-rel="225x255" alt="Handicap" title="Handicap" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDMvNTEvMTcvNzk4L0hhbmRpY2FwLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/Handicap.jpg" width="170" height="255" /></p>
<p>In a past <a target="_blank" title="http://www.erbelaw.com/blog/posts/clearing-up-confusion-about-the-ada-s-interactive-process-for-reasonable-accommodation-claims" href="http://www.erbelaw.com/blog/posts/clearing-up-confusion-about-the-ada-s-interactive-process-for-reasonable-accommodation-claims">post</a> about <a title="Disability Discrimination Law" href="/practice-areas/employment-labor-law/disability-discrimination-law">disability discrimination</a>, I briefly touched on the interactive process that the Americans With Disability Act requires when employers and employees try to accommodate an employee's disability. The ADA mandates that employers reasonably accommodate employees' disabilities of. Federal regulations further instruct that reasonable accommodations must be determined through an “interactive process.” Failure to do so can expose an employer to an employment law claim for failing to offer a reasonable accommodation to a person with a disability.</p>
<p>The federal regulations, which the courts often follow, include several steps for the interactive process:</p>
<ul><li>The employer should evaluate the particular job to determine the job's purpose and essential functions.</li>
<li>The employer and the disabled employee should interact to identify any limitations due to a disability that may hinder the employee's performance of a particular job function. This should include an analysis of the employee’s abilities and limitations and the factors in the work environment or job duties that may pose difficulties.</li>
<li>The employer and the employee should identify possible accommodations that might eliminate the employee's difficulties while still allowing the employee to perform the essential functions of the job. </li>
<li>Once the possible accommodations have been identified, the employer should evaluate the effectiveness of each potential accommodation and the employee's preferences, then decide whether any of the possible accommodations would cause undue hardship to the employer.</li>
</ul>
<p> It's expected that employers and employees will review possible accommodations in good faith. The interactive process requires communication and good-faith exploration of possible accommodations between employers and individual employees. The shared goal is to identify an accommodation that allows the employee to perform the job effectively. From the employer's standpoint, good faith can be viewed as the equivalent of cooperation. Employers should make the interactive process as easy as possible for employees through things such as having forms to be used for requesting accommodations, making time to address accommodation requests and doing so in a timely manner, and training management personnel to ensure that none of them do anything to hinder the interactive process.</p>
<p> It's important that employers communicate directly with employees as part of the interactive process and that employees do likewise. Both sides must communicate directly, exchange essential information, and avoid delaying or obstructing the process. Thus direct communication and cooperation is expected of both the employer and the employee. As I noted in my earlier post, that means that employees may have to provide information to the employer as part of the interactive process. </p>
<p>Under the ADA, it is illegal to impose an accommodation on an employee, refuse a requested accommodation, or decide that no accommodations can be made at all without engaging in the interactive process. That includes consulting with the employee and evaluating the effectiveness of any possible&#160; accommodations with the employee. &#160; </p>
<p>A corollary to the interactive process is the the rule that employers must make individualized assessment when an employee requests a disability accommodation. That means that uniform, across-the-board policies that always apply to all employees may need to be adjusted as part of offering an employee a reasonable disability accommodation. Employers have to be flexible and cannot rigidly apply uniform policies and procedures when presented with a disability accommodation request.</p>Wed, 30 Sep 2015 06:00:00 +0000http://erbelaw.com/blog/posts/revisiting-the-interactive-process-under-the-americans-with-disabilities-act
Can My Employer Force Me To Stay On FMLA Leave Until I Can Return With No Restrictions? <p><img data-rel="225x255" alt="Office" title="Office" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDMvNDcvMzMvMjIyL09mZmljZS5qcGciXSxbInAiLCJ0aHVtYiIsIjIyNXgyNTU%2BIl0sWyJwIiwic3RyaXAiXV0/Office.jpg" width="170" height="255" /></p>
<p>Many employers have <a title="Family And Medical Leave Act (FMLA) Law" href="/practice-areas/employment-labor-law/family-and-medical-leave-act-fmla-law">Family and Medical Leave Act (FMLA)</a> policies, or even just regular medical leave policies, that require employees to be 100% recovered from an injury and have no restrictions before the employee is allowed to return to work. Employers enact such policies because they don't want to have to deal with further injuries at work and a resulting workers' compensation claim. Those policies are possibly illegal and can lead to <a title="Employment Discrimination Law" href="/practice-areas/employment-labor-law/employment-discrimination-law">employment discrimination</a> lawsuits. </p>
<p>Most courts have concluded that "100% healed" or "no restrictions" policies discriminate against disabled employees who might otherwise be able to perform the essential functions of their job with or without a reasonable accommodation in violation of the <a title="Disability Discrimination Law" href="/practice-areas/employment-labor-law/disability-discrimination-law">Americans with Disabilities Act</a>. The ADA mandates that employers make an individualized assessment when evaluating whether and when an employee can return to work following medical leave. The majority of courts that have confronted this issue have ruled that such employer policies avoid the individualized assessment requirement and violate the ADA. Those courts reason that these policies represent an assumption by the employer that employees cannot perform their job duties while avoiding the question of whether a reasonable disability accommodation properly could address the employee’s restrictions. </p>
<p>The Equal Employment Opportunity Commission's disability discrimination policies echo the courts' position on this issue. The EEOC maintains that employers have an obligation to communicate with employees on leaves of absence and evaluate their ability to return to work at the conclusion of their medical leave. In fact, the illegality of&#160;"100% healed" or "no restrictions" policies was part of a group of warnings that the EEOC issued to employers during a June 2011 public hearing concerning the ADA and medical leave.</p>
<p>There's a wrinkle to this aspect of ADA law though. These policies are only an issue if the employee can prove an actual or perceived disability. That's because the ADA's requirement for reasonable disability accommodations, which is what&#160;"100% healed" or "no restrictions" policies violate, only protect individuals with a disability. If the employee cannot demonstrate an actual or perceived disability, there's no disability for the employer to accommodate, the&#160;"100% healed" or "no restrictions" policy is not illegal, and there's no claim. Luckily, it's become easier to establish an actual or perceived disability since the passage of the <a target="_blank" title="https://erbelaw.wordpress.com/2013/11/12/regarded-as-or-perceived-disability-claims-under-the-americans-with-disabilities-act/" href="https://erbelaw.wordpress.com/2013/11/12/regarded-as-or-perceived-disability-claims-under-the-americans-with-disabilities-act/">American With Disabilities Act Amendments Act</a>. As one federal appeals court noted, “[t]he risk of a [100% healed] policy is even greater, if not absolute, now that the ADAAA has changed the definition of ‘regarded as’ disabled.”</p>
<p>Employees also bear some responsibility for assisting in the individualized assessment regarding whether they can return to work after a medical leave. In fact, in 2014 the United States Court of Appeals for the Eighth Circuit, which includes Iowa, considered an employer policy that required employees "to IMMEDIATELY provide a copy of the release to your supervisor to determine your return to work date. Employees who fail to return to work as designated are considered to have resigned." An employee was fired for noncompliance with that policy. He alleged that the policy violated the ADA. The court disagreed and ruled that the employer's policy was legal and the employee was legally fired for failing to comply with it. </p>
<p>Please feel free to contact us if we can assist with any FMLA matters or other <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">employment law</a> claims.</p>Thu, 24 Sep 2015 11:34:00 +0000http://erbelaw.com/blog/posts/can-my-employer-force-me-to-stay-on-fmla-leave-until-i-can-return-with-no-restrictions
It's Difficult To Sue Prosecutors For Defamation<p>We often receive calls from people wondering what they can do after they've successfully defended a criminal prosecution. One claim people often want to discuss in that situation is defamation. <a title="Business Practices &amp; Contract Law" href="/practice-areas/business-practices-contract-law">Defamation</a> is a type of civil wrong that encompasses verbal or written false statements. Successful criminal defendants frequently ask whether they can sue the prosecutor for alleged false statements made as part of the investigation and prosecution, including statements made in court. The answer is probably not.</p>
<p>The first hurdle that people often encounter in this situation is proving that the prosecutor made a false statement. Prosecutors' written and verbal statements often constitute either argument or a simple repetition of the facts of the case derived from a witness or a document. What we hear a lot is that people want to sue prosecutors for eliciting false testimony during a criminal trial. But how do you know that the testimony was false? And how do you know that the prosecutor knew that the testimony was false? Just because a criminal defendant wins or disagrees with a witness's testimony doesn't automatically make that testimony false, and certainly doesn't automatically lead to the conclusion that the prosecutor suborned perjury. Testimony often conflicts during a trial; a verdict for one party doesn't necessarily mean that the jury disbelieved the other party's witnesses. It might just mean that the jury found one side's evidence more credible or persuasive than the other.</p>
<p>Even if a criminal defendant could prove that a prosecutor made a knowingly false statement at some point, prosecutors enjoy two forms of immunity from defamation claims that make it very difficult to pursue such claims against a prosecutor. Prosecutors are entitled to absolute immunity for quasi-judicial activities, i.e., activities intimately associated with the judicial phase of the criminal process. The quasi-judicial activities to which absolute immunity attaches may occur inside or outside the courtroom. They include the initiation of a prosecution, the presentation of the state's case in court, or actions preparatory for these functions. Absolute immunity means that the prosecutor cannot be sued for defamation under any circumstances, even if a false statement was made knowingly and for an improper purpose.</p>
<p>Not all prosecutorial functions are entitled to absolute immunity. A prosecutor's administrative duties, investigatory functions, and advice to law enforcement that do not relate to preparation for the initiation of a prosecution or for judicial proceedings are not entitled to absolute immunity. Absolute immunity attaches to specific activities engaged in by a prosecutor. Absolute immunity does not exist merely by virtue of a civil defendant's status as a prosecutor.&#160; Instead, these types of prosecutorial activities are entitled to qualified immunity. Under a qualified immunity analysis, a prosecutor may escape liability for making a false statement if the prosecutor had a good faith belief that the statement was true.</p>
<p>Iowa's law of absolute immunity has protected prosecutors in some surprising situations. Prosecutors have been determined to be absolutely immune from liability in the following situations: Criminal charges used as leverage in settlement negotiations for a client in an associated civil matter; maliciously filing a complaint without probable cause; malicious institution of criminal proceedings against a man whose wife the prosecutor was representing in their divorce; and the decision whether to bring or not bring criminal charges, including whether to not bring criminal charges because of the law enforcement officer involved in the matter. But in other cases, prosecutorial activities have been determined to be entitled to only qualified immunity, such as: Writing a letter to law enforcement; holding a press conference; and personnel matters. </p>Wed, 16 Sep 2015 12:59:00 +0000http://erbelaw.com/blog/posts/it-s-difficult-to-sue-prosecutors-for-defamation
Iowa's Uniform Trade Secrets Act<p><img data-rel="225x255" alt="Office" title="Office" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDMvNDcvMzMvMjIyL09mZmljZS5qcGciXSxbInAiLCJ0aHVtYiIsIjIyNXgyNTU%2BIl0sWyJwIiwic3RyaXAiXV0/Office.jpg" width="170" height="255" /></p>
<p>A seldom used, but fairly powerful Iowa law, is Iowa's Uniform Trade Secrets Act, Iowa Code Chapter 550. A trade secrets claim can arise under any circumstances. Common situations for a trade secrets claim are business relationships and employment relationships.</p>
<p>The trade secrets act defines "trade secret" as "information, including but not limited to a formula, pattern, compilation, program, device, method, technique, or process." To constitute a trade secret, the information independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by a person able to obtain economic value from its disclosure or use. Further, the person claiming a trade secret must make efforts that are reasonable under the circumstances to maintain its secrecy.</p>
<p>Iowa's trade secrets act allows an injured party to seek injunctive relief and money damages for the misappropriation of a trade secret. An action for misappropriation under this chapter must be brought within three years after the misappropriation is discovered or should have been discovered by the exercise of reasonable diligence. There are several different types of misappropriation:</p>
<ul><li>Acquisition of a trade secret by a person who knows that the trade secret is acquired by improper means.</li>
<li>Disclosure or use of a trade secret by a person who uses improper means to acquire the trade secret.</li>
<li>Disclosure or use of a trade secret by a person who at the time of disclosure or use, knows that the trade secret is derived from or through a person who had utilized improper means to acquire the trade secret.</li>
<li>Disclosure or use of a trade secret by a person who at the time of disclosure or use knows that the trade secret is acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use.</li>
<li>Disclosure or use of a trade secret by a person who at the time of disclosure or use knows that the trade secret is derived from or through a person who owes a duty to maintain the trade secret’s secrecy or limit its use.</li>
<li>Disclosure or use of a trade secret by a person who, before a material change in the person’s position, knows that the information is a trade secret and that the trade secret has been acquired by accident or mistake.</li>
</ul>
<p>Damages may include the actual loss caused by the misappropriation of the trade secret, and the unjust enrichment caused by the misappropriation to the extent that's not taken into account in computing the actual loss. In lieu of damages measured by any other methods, the damages caused by misappropriation may be measured by imposition of liability for a reasonable royalty for a person’s unauthorized disclosure or use of a trade secret. If a person commits a willful and malicious misappropriation, the court may award punitive damages in an amount not exceeding twice the compensatory damage award. In certain circumstances attorney fees may also be recovered.</p>
<p>The fighting issues in a trade secret case usually concern whether the information actually constituted a trade secret or whether actionable misappropriation occurred. Damages are also usually contested, especially if the plaintiff cannot prove actual damages and instead seeks damages for unjust enrichment or a reasonable royalty, types of damages that are often difficult to prove with any level of specificity. Iowa's trade secrets statute also has an affirmative defense available if the person disclosing a trade secret made the disclosure with the implied or express consent of the owner of the trade secret.</p>
<p>Please feel free to contact us if you need the assistance of a <a title="Business Practices &amp; Contract Law" href="/practice-areas/business-practices-contract-law">Des Moines business practices lawyer.</a>
</p>Thu, 10 Sep 2015 11:16:00 +0000http://erbelaw.com/blog/posts/iowa-s-uniform-trade-secrets-act
Nursing Home Liability For Wandering Or Eloping Patients<p><img data-rel="225x255" alt="Elderly Couple" title="Elderly Couple" src="/system/images/W1siZiIsIjIwMTQvMTIvMTYvMDUvMDkvMzkvMzA4L0VsZGVybHlfQ291cGxlLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/Elderly-Couple.jpg" width="225" height="178" /></p>
<p>Wandering and eloping patients are a significant problem for nursing homes. A wandering patient is someone who's moving aimlessly throughout the nursing home facility. Elopement, which is much more dangerous then wandering within the facility, encompasses situations when a resident leaves the facility unsupervised. Both situations put nursing home residents at risk of <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">personal injury or death</a>. Inside the facility, they may encounter dangers that they were meant to be kept away from, such as stairwells, windows, construction areas, dangerous chemicals and machinery, and other patients who may be dangerous. Outside the facility they encounter traffic and the elements and may become disoriented and forget where they came from or how to return to the facility.</p>
<p>There are numerous causes of wandering and eloping. Patients with dementia or Alzheimer’s, particularly those who have just begun suffering from those conditions, are especially at risk for wandering or eloping. That is likely due to the strange and new environment of the nursing facility. The new environment may overwhelm dementia patients. That causes them to try to leave and search for familiar surroundings.</p>
<p>Alteration of a resident's medication or routine may cause wandering or eloping. Any unwelcome change may make the resident uncomfortable and lead to the possibility of wandering or eloping. Unmet physical needs, such as using a restroom or hunger, increase the risk that a resident will wander. In such situations the resident may look for someone or a place that can meet those needs. In these cases, patients may wander in nursing homes because they have forgotten where these areas are. Socialization for residents, either with staff or with other residents, is also important. Without sufficient personal interaction, residents may feel unrest that they try to cure by wandering or eloping. </p>
<p>Wandering or eloping that causes a resident's injuries or death can lead to <a title="Nursing Home Injuries" href="/practice-areas/nursing-home-injuries">nursing home liability</a> if the facility failed to prevent wandering or eloping or protect the resident during such episodes. To avoid incidents of wandering or eloping, nursing home staff must analyze each resident during admission. Among other things, that evaluation should include an assessment of the patient's risk of wandering or eloping. Restraining residents who are at risk of wandering or eloping is not the answer. Restraints can actually contribute to a patient's desire to wander. The best plan is not to prevent wandering or eloping, but rather closely supervise the resident to ensure that the resident doesn't wander into a dangerous area or out of the building. Securing all doors but those located in the safe areas for patients can help in prevent wandering.</p>
<p>The nursing facility's staff must walk a fine line between keeping residents safe on the one hand while allowing them freedom of movement on the other. That is why an individualized assessment of each resident is necessary. Awareness of each patient’s individual situations and wandering risks increases the likelihood of preventing wandering and eloping. If a resident has repeated wandering or eloping incidents, the facility may have to change the resident’s environment or remove the resident from the nursing home to prevent injuries or death. </p>Wed, 02 Sep 2015 11:18:00 +0000http://erbelaw.com/blog/posts/nursing-home-liability-for-wandering-or-eloping-patients
What Are Some Of The Actual Laws For Cyclists On Roadways?<p><img data-rel="225x255" alt="20100317 091502 Crosswalk" title="20100317 091502 Crosswalk" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMzMvMDUvMzkzLzIwMTAwMzE3XzA5MTUwMl9DUk9TU1dBTEsuanBnIl0sWyJwIiwidGh1bWIiLCIyMjV4MjU1PiJdLFsicCIsInN0cmlwIl1d/20100317_091502_CROSSWALK.jpg" width="225" height="149" />
</p>
<p>There are two topics guaranteed to get Iowans' blood boiling. One is Iowa-Iowa State. The other is motor vehicles versus bicycles. While our law firm can't assist with the football issue, we can certainly with vehicle versus bicycle matters.</p>
<p><a title="Bicycle Accidents" href="/practice-areas/personal-injurywrongful-death-law/bicycle-accidents">Bicycle accidents</a>, especially those that result in the rider's death, are always tragic. Unfortunately, the commentary, from drivers and riders alike, that always follows such events is frequently uninformed as to the actual legal obligations borne by drivers and riders under Iowa law. Particularly for the unprotected cyclists, who have much more to lose from following bad advice, such uninformed recommendations can only increase the risk of vehicle versus bicycle accidents. Therefore I want to focus on cyclists' responsibilities when on public roadways.</p>
<p>Many misperceptions seems to arise from people's lack of knowledge that Iowa's motor vehicle code, Iowa Code Chapter 321, specifically applies in all important respects to bicycles. Cyclists' equal access to roadways comes with an equal obligation to obey most rules of the road in Chapter 321. Iowa Code 321.234(2) provides that "[a] person . . . riding a bicycle on the highway is subject to the provisions of this chapter and has all the rights and duties under this chapter applicable to the driver of a vehicle, except those provisions of this chapter which by their nature can have no application or those provisions for which specific exceptions have been set forth regarding police bicycles." Some of the important Chapter 321 provisions regarding cyclist safety include the location where a cyclist should be located in a lane of travel, where a cyclist should be positioned to pass a vehicle, and which direction a cyclist should be traveling in relation to traffic. Cyclists' obligation to obey traffic signals seems to be something that no one misunderstands or disagrees with, so I won't discuss that.&#160; </p>
<p>Lane position is a frequent topic of debate. Different people have different ideas on where cyclists should be positioned in their lanes on the road. I can't speak to those opinions, but I can state that Iowa Code 321.297(2) requires "[a]ny vehicle proceeding at less than the normal speed of traffic at the time and place and under the conditions then existing shall be driven in the right-hand lane then available for traffic upon all roadways, or as close as practicable to the right-hand curb or edge of the roadway, except when overtaking and passing another vehicle proceeding in the same direction or when preparing for a left turn at an intersection, an alley, private road or driveway." Remember that this section equally applies to bicycles. Since bicycles rarely move faster than surrounding traffic, this section requires cyclists to ride as close to the right edge of the roadway as practicable. This section also almost certainly prohibits the common practice of cyclists riding two abreast while being passed by faster-moving traffic.</p>
<p>That leads to a second topic, which is riding against the flow of traffic. There's no specific Iowa Code section that requires cyclists to ride with the flow of traffic, but such a rule is certainly implied by the section quoted above, not to mention common sense and survival instinct. As the Iowa Department of Transportation <a target="_blank" title="https://www.google.com/url?sa=t&amp;rct=j&amp;q=&amp;esrc=s&amp;source=web&amp;cd=4&amp;cad=rja&amp;uact=8&amp;ved=0CDEQFjADahUKEwitiMujrsLHAhXFHD4KHShWAbA&amp;url=http%3A%2F%2Fwww.iowadot.gov%2Fmaps%2Fmsp%2Fpdf%2Fbikelaws.pdf&amp;ei=HmTbVa2BIMW5-AGorIWACw&amp;usg=AFQjCNFBiJOe4UuUMh3WWd-wiBXUiJlYDQ" href="https://www.google.com/url?sa=t&amp;rct=j&amp;q=&amp;esrc=s&amp;source=web&amp;cd=4&amp;cad=rja&amp;uact=8&amp;ved=0CDEQFjADahUKEwitiMujrsLHAhXFHD4KHShWAbA&amp;url=http%3A%2F%2Fwww.iowadot.gov%2Fmaps%2Fmsp%2Fpdf%2Fbikelaws.pdf&amp;ei=HmTbVa2BIMW5-AGorIWACw&amp;usg=AFQjCNFBiJOe4UuUMh3WWd-wiBXUiJlYDQ">notes</a>, "[m]otorists and other cyclists aren’t looking for a bicyclist on the wrong side of the roadway.&#160; Riding on the wrong side increases the likelihood and severity of head-on collisions."&#160; </p>
<p>Finally, there's the issue of safe passing. I'm not sure that all cyclists consider themselves to be "passing" vehicles when they weave through or ride down the middle of stopped traffic, particularly at traffic lights, but they are. The rules for passing vehicles in Iowa Code sections 321.299-321.304 equally apply to bicycles, particularly the rules requiring passing on the left, not in the middle or on the right as cyclists sometimes do. </p>
<p>Please feel free to contact us if you need the assistance of a <a title="Car Accidents" href="/practice-areas/car-accidents">Des Moines car accident lawyer</a> or <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">Des Moines personal injury lawyer
</a>.</p>Wed, 26 Aug 2015 06:00:00 +0000http://erbelaw.com/blog/posts/what-are-some-of-the-actual-laws-for-cyclists-on-roadways
Your Legal Rights When A Neighbor's Trees Encroach On Your Property<p><img data-rel="225x255" alt="Trees 1" title="Trees 1" src="/system/images/W1siZiIsIjIwMTQvMDkvMTkvMTIvNTAvNDUvODc1L3RyZWVzXzEuanBnIl0sWyJwIiwidGh1bWIiLCIyMjV4MjU1PiJdLFsicCIsInN0cmlwIl1d/trees-1.jpg" width="225" height="150" /></p>
<p>Many private property owners like trees. They look good. When large enough, their leaf canopies provide shade during the summer.&#160; </p>
<p>But trees also grow. As trees mature, their root systems spread underground (or sometimes visibly right on the surface). And their canopies widen, crossing property lines and sometimes causing branches or limbs to hang over neighbors' houses or buildings. Many people don't realize this, but when your trees' roots, branches, or limbs cross onto someone else's property, even in the air, your trespassing on that neighbor's property.&#160; </p>
<p>Of course, usually neither the owner of the tree nor the neighbor do anything about it. But sometimes neighbor disputes occur, soon devolving into arguments over everything, including encroaching tree roots, limbs, and branches. Other times, the roots or limbs legitimately pose an actual or future property damage issue. So what can be done legally in that situation? &#160; &#160; &#160; &#160; &#160;&#160; &#160; </p>
<p>A healthy tree with limbs or branches that simply overhang neighboring property or whose roots cross property lines without damaging anything is the simplest situation to address legally. The owner of a healthy tree whose roots, limbs, or branches are encroaching on neighboring property has no legal obligation to do anything about the natural growth of that tree. Adjoining landowners would have the right, at their expense, to cut back to the property line any such encroaching components of the tree, but that's it. If in doing so, the neighboring landowner injures the tree or causes it to be destroyed, that landowner could actually be liable to the tree owner for money damages. The right to cut encroaching roots, limbs, or branches back to the property line exists regardless of whether they're causing or may cause a nuisance or property damage. &#160;&#160; </p>
<p>The analysis changes when encroaching trees pose actual or imminent harm to neighboring property. Tree roots may be damaging the adjoining land or structures (usually foundations) on the neighboring land. Tree limbs can be about to fall or actually fall and damage property on the neighboring land. The neighboring landowner has much greater rights against the tree owner in such situations. The tree owner can be required by a court to cut back the encroaching tree roots or limbs, even if not damage has yet occurred but is merely imminent. Under certain circumstances, a tree owner can also be sued for property damage caused by encroaching tree roots or limbs.</p>
<p>Sometimes, the "encroachment" of a tree from one property to another goes beyond spreading roots, branches, or limbs. Instead, a limb or the entire tree falls. The tree owner may be liable for personal injuries or property damage caused by such an incident, but that's not an easy claim to prove. At least under Iowa law, the tree owner isn't automatically liable in such circumstances. Negligence must be proved. That means the tree owner is not liable for damage caused by the fallen tree or limb unless the owner knew or should have known that there was a risk of that happening. So a tree owner that allows a noticeably dying or diseased tree to remain on the owner's property may later be liable if, as a result of the tree's death or disease, a limb or the entire tree falls and hurts someone or damages property. But a tree owner likely would not be liable in a situation where a perfectly healthy tree (or a tree that appears perfectly health and is not known to be diseased) or a limb from such a tree falls, perhaps during a storm. That's likely be considered an "Act of God," and thus nobody's fault.</p>
<p>Please feel free to contact us if you need the assistance of a <a title="Real Estate Litigation" href="/practice-areas/real-estate-litigation">Des Moines real estate litigation lawyer</a>.</p>Thu, 20 Aug 2015 11:26:00 +0000http://erbelaw.com/blog/posts/your-legal-rights-when-a-neighbor-s-trees-encroach-on-your-property
Holding Employers To Their FMLA Promises -- The Theory Of "Estoppel" Under The Family And Medical Leave Act<p><img data-rel="225x255" alt="021749 Doctor Gp Medical Hospital Stethoscope Generic" title="021749 Doctor Gp Medical Hospital Stethoscope Generic" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDMvNTUvNTkvOTY3LzAyMTc0OV9kb2N0b3JfZ3BfbWVkaWNhbF9ob3NwaXRhbF9zdGV0aG9zY29wZV9nZW5lcmljLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/021749-doctor-gp-medical-hospital-stethoscope-generic.jpg" width="225" height="127" /></p>
<p>As <a title="Family And Medical Leave Act (FMLA) Law" href="/practice-areas/employment-labor-law/family-and-medical-leave-act-fmla-law">Des Moines FMLA lawyers</a>, we know that employers make many mistakes when it comes to the Family Medical Leave Act. Most frequently, employers' FMLA violations concern denying someone FMLA time who should've received it or disciplining or <a title="Wrongful Termination Law" href="/practice-areas/employment-labor-law/wrongful-termination-law">wrongfully terminating</a> an employee in retaliation for taking FMLA-protected leave. But employers occasionally grant FMLA leave by mistake when they had no legal obligation to do so. Then they discipline or fire the employee for missing too much work without FMLA protection, even though the employer initially told the employee that FMLA time was available. That's not fair to the employee, who thought that work could be missed without repercussions based upon the employer's FMLA representations. Is there anything the employee can do about that?&#160; </p>
<p>One remedy for employees in these situations is a legal claim called "equitable estoppel." Equitable estoppel is available to prevent an employer from contesting an employee's right to assert a claim under the FMLA. At its base, the estoppel theory refers to situations in which an employer has represented that it granted an employee leave, inducing the employee's reasonable reliance on that representation, and later disciplines or terminates the employee for missing work.&#160; </p>
<p>Courts have applied the equitable estoppel theory to various FMLA situations. One example is an employer that told an employee he could have 34 weeks of FMLA time, when in fact the law only entitled him to twelve weeks. Equitable estoppel has also been applied to the issue of whether an employee had a serious health condition, a necessary predicate under the FMLA. Employers that initially allow FMLA leave may later be prohibited that the employee was not entitled to FMLA because the employee didn't have a serious medical condition.</p>
<p>The theory of equitable estoppel under the FMLA is not without its limits. An estoppel-based FMLA claim cannot succeed based on vague employer representations regarding leave. There must be some reason for the employee to reasonably understand from the employer's statements that the employee's absence will be protected by the FMLA. The reason for that rule is that a reasonable person would not be entitled to rely on vague employer representations that don't tie into FMLA leave. </p>
<p>Further, employees need to give employers adequate notice that they seek FMLA and not some other type of employment leave. An equitable estoppel claim fails unless the employee first triggers the FMLA's protections by providing the employer with adequate and timely notice that FMLA leave may be necessary. To permit otherwise would enable employees to blindside employers by taking a generic leave request and retroactively transforming it into an FMLA claim. Thus the employer must be made aware that the absence is due to a serious illness so the employer can distinguish it from ordinary sick days or other types of non-FMLA employment leave.</p>
<p>Finally, and for similar reasons, to assert estoppel under the FMLA employees must prove that they actually and reasonably believed that the employer had granted FMLA time and not some other type of employment leave. This issue is determined based upon the totality of the circumstances. A specific employer reference to the FMLA or certain FMLA words or phrases is not required, but the employee must reasonably believe that FMLA leave is what the employer had in mind, not some other type of leave.&#160; </p>
<p>Please feel free to contact us if you need the assistance of a <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">Des Moines employment lawyer</a>.</p>Wed, 12 Aug 2015 06:00:00 +0000http://erbelaw.com/blog/posts/holding-employers-to-their-fmla-promises-the-theory-of-estoppel-under-the-family-and-medical-leave-act
Fall 2015 U.S. Supreme Court Docket To Include Iowa Overtime Case<p><img data-rel="225x255" alt="Clock" title="Clock" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDUvMTAvNTkvODg1L2Nsb2NrLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/clock.jpg" width="225" height="207" /></p>
<p>As <a title="Overtime Law" href="/practice-areas/overtime-law">Des Moines overtime lawyers</a> and <a title="Iowa Wage Law" href="/practice-areas/employment-labor-law/iowa-wage-law">Des Moines wage lawyers</a> we're closely watching two cases pending on the United States Supreme Court's Fall 2015 docket. Both concern class actions (or collective actions, as they're known in the overtime law world). And one of the cases,&#160;<em>Tyson Foods, Inc. v. Bouaphakeo</em>, is from Iowa and specifically concerns overtime collective actions. </p>
<p>Typically, to certify a standard class action under federal law, plaintiffs must demonstrate that there are questions of law or fact common to the class. That requirement is known as the commonality requirement. The plaintiff also has to show that the common questions predominate over any questions that affect only individual members, what's called the predominance requirement. But the rules for an overtime class action (technically known as a "collective action"), are different. To authorize an overtime collective action a court need only determine that the potential plaintiffs are "similarly situated" to each another. That's generally easier to establish for a plaintiff than the commonality and predominance requirements for a standard class action under federal law.</p>
<p>In the Tyson Foods case, the plaintiff contended that Tyson Foods violated Iowa state wage law and federal overtime law by failing to pay employees for the time they spent putting on and removing protective gear and traveling to and from worksites. The federal trial court certified a standard class action and an overtime collective action because it concluded that there were common questions over whether the employees' activities were compensable working time. The plaintiffs won at trial, leading to one of the appeal issues, which concerned how to calculate the employees' earned, unpaid regular wages and overtime. The trial court permitted the plaintiffs to offer statistical evidence that treated all employees as an average class member for purpose of measuring damages even though class members spent different amounts of time putting protective equipment on and removing it. On appeal this fall, the United States Supreme Court will determine whether the differences between individual class members, insofar as they spent different amounts of time working with the protective equipment, can be disregarded when deciding whether to certify a class action or federal overtime collective action and whether it was proper to determine damages using statistical evidence. </p>
<p>The other case we're monitoring this fall is <em>Campbell-Ewald Co. v. Gomez</em>. The <em>Gomez </em>case is expected to answer the question of whether employers can "buy off" potential class or collective action representatives before the plaintiff has a chance to get the class or collective action machinery moving. At issue in <em>Gomez </em>is a procedural tool called an "offer of judgment." What if, before a plaintiff seeks to certify a class or collective action, an employer offers to confess judgment for the full amount that the potential class or collective action representative could ever hope to recover through the lawsuit? In theory, that tactic could permit employers to immediately neutralize a potential class or collective action by giving a plaintiff everything that the plaintiff could hope to recover through the lawsuit. The idea is that, whether the plaintiff wants it or not, the plaintiff's claim is now "moot" because the plaintiff has been given an opportunity to recover everything without a fight. That in turn is meant to remove that plaintiff as a potential class or collective action representative. If that plaintiff no longer has a claim because the employer's voluntarily given the employee everything, then that plaintiff can longer be a possible class action or collective action representative.&#160; </p>
<p>Please feel free to contact us if you need the assistance of a <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">Des Moines employment lawyer</a>.</p>Wed, 05 Aug 2015 15:47:00 +0000http://erbelaw.com/blog/posts/fall-2015-u-s-supreme-court-docket-to-include-iowa-overtime-case
FMLA Leave Doesn't Make You Superman And Other Lessons From Adams v. Anne Arundel County Public Schools<p><img data-rel="225x255" alt="021749 Doctor Gp Medical Hospital Stethoscope Generic" title="021749 Doctor Gp Medical Hospital Stethoscope Generic" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDMvNTUvNTkvOTY3LzAyMTc0OV9kb2N0b3JfZ3BfbWVkaWNhbF9ob3NwaXRhbF9zdGV0aG9zY29wZV9nZW5lcmljLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/021749-doctor-gp-medical-hospital-stethoscope-generic.jpg" width="225" height="127" /></p>
<p>A common misconception that we encounter as <a title="Family And Medical Leave Act (FMLA) Law" href="/practice-areas/employment-labor-law/family-and-medical-leave-act-fmla-law">Des Moines FMLA lawyers</a> is the effect of FMLA leave on employers' right to investigate or discipline employees who are on FMLA leave. The misconception is that it's illegal for employers to investigate or discipline employees who are on FMLA leave. That's actually not true. FMLA leave does not make an employee bulletproof, like Superman. Employees can be investigated or disciplined for things that occurred before or during their FMLA leave, as long as the discipline doesn't occur <em>because</em> of the leave.</p>
<p>That point was recently illustrated when a federal appeals court upheld the dismissal of FMLA claims in <em>Adams v. Anne Arundel County Public Schools</em>. Andrew Adams, a teacher, was being investigated for an incident involving a student. Adams went on FMLA leave shortly after the school district began its internal investigation into the student's allegations. The school's investigative process continued while Adams was on medical leave. The school required him to attend a pre-disciplinary conference had been scheduled while he was on leave. Two weeks after the conference, Adams received a letter from the school formally reprimanding him for the issue involving the student. </p>
<p>Adams later sued the school district. One of his claims alleged that the district interfered with his FMLA rights and retaliated against him for taking medical leave. Adams argued that the school district interfered with his leave in a variety of ways that stopped short of actually denying him leave.&#160; </p>
<p>One such allegation involved the ongoing investigation during Adams's leave and the fact that he was required to attend a meeting with school officials while on leave. Adams contended that the district's pre-disciplinary conference interfered with his leave by forcing him to "work." It's true that, in certain circumstances, required meetings may unlawfully interrupt an employee's leave and violate the FMLA. But the court concluded that the one-time conference was a legitimate piece of an ongoing investigation into the alleged incident between Adams and the student. </p>
<p>The court also rejected Adams's argument that the ongoing investigation, which continued while he was on medical leave, somehow violated his FMLA rights. There was little evidence that the school district closed and then reopened its investigation into whether Adams had violated school district policies, much less that its actions had anything to do with Adams's FMLA leave. Rather, the court believed that the evidence pointed to the contrary conclusion that the district's investigation into school district policy violations was continuous. </p>
<p>The court also found no issue with the school district's requirement that Andrews attend a disciplinary meeting while on medical leave. The pre-disciplinary conference was part of the investigatory and disciplinary process. The court determined that Adams did not adequately link the disciplinary meeting to his FMLA absences and that seeking the participation of Adams and his attorney in that process did not constitute an impermissible interference with Adams's FMLA leave.</p>
<p>In sum, the appellate court decided that none of the school district's actions violated the Family and Medical Leave Act. This case is noteworthy because Andrews's FMLA absences did not in any way inhibit his employer's right to investigate him for conduct that allegedly occurred before he sought FMLA leave. Although employers may, and often do, refrain from disciplining or investigating employees who are on FMLA leave, there is no legal requirement that they do so.</p>
<p>Please feel free to contact us if you need the assistance of a <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">Des Moines employment lawyer</a>.</p>Wed, 29 Jul 2015 06:00:00 +0000http://erbelaw.com/blog/posts/fmla-leave-doesn-t-make-you-superman-and-other-lessons-from-adams-v-anne-arundel-county-public-schools
Summarizing The U.S. Department Of Labor's New Proposed Overtime Rules<p><img data-rel="225x255" alt="Clock" title="Clock" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDUvMTAvNTkvODg1L2Nsb2NrLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/clock.jpg" width="225" height="207" /></p>
<p>The United States Department of Labor, which is tasked with setting rules for the implementation of federal overtime law, has finally released its proposed updates to the "white collar exemption" rules. Those are the rules that cover overtime for salaried workers. They include the exemptions for executive, administrative, and professional employees. It's thought that the updated rules will make millions more employees eligible for overtime wages.</p>
<p>The DOL's new rules will increase the salary threshold for the white collar exemptions to $970 per week ($50,400 per year) over the currently required $455 per week. Under the new rules, executive, administrative, and professional employees who receive a salary of less than $50,400 per year will be entitled to overtime, regardless of their duties, if they work more than forty hours in a given week. Those who earn over $50,400 will only be eligible for overtime if their job duties do not qualify them as exempt under one of the white collar exemptions. </p>
<p>The DOL has proposed increasing the salary threshold because it had fallen behind overall wage increases to the point that every already made the currently required minimum salary of $455 per week. Importantly, to prevent the salary threshold from becoming obsolete again in the future, the DOL's proposed new rules contemplate connecting the salary threshold to a cost of living index. The DOL commented that "regular updates to the salary level test are imperative to ensuring that the salary level does not become obsolete over time."</p>
<p>Proponents of the proposed rules maintain that the rules will prevent employers from requiring salaried employees to work long hours without appropriate compensation. The DOL claims that raising the salary threshold serves the policy goals of reducing overwork and its detrimental effect on workers' health and well-being and spreading employment by incentivizing employers to hire more employees rather than requiring existing employees to work longer hours.
</p>
<p>The DOL also believes that employers will benefit from the proposed salary threshold increase. The new standard is supposedly simpler for employers to comply with. The DOL states that the new rules will "simplify the identification of nonexempt employees" and make the exemptions "easier for employers and workers to understand."&#160; </p>
<p>I don't quite understand that. The salary threshold, regardless of its level, has always been easy for employers to comply with as long as they don't play around too much with an employee's salary to the point that it no longer operates as a true salary. Either employers pay the minimum required salary or they don't. That's not complex at all no matter what level the salary threshold is set at.&#160; </p>
<p>The primary cause of uncertainty and disputes for the white collar exemptions is the second component of the exemption analysis, the "duties" test. Most overtime disputes are fought over whether an employee's job duties meet the requirements of the executive, administrative, or professional exemptions, not the salary test that the proposed rules modify. The DOL punted on the more complex issue of the duties test when it issued its proposed rules. It merely stated that it's considering modifications to the duties tests in the white collar exemptions and invited comment on that topic. </p>
<p>Lost in all the hubbub about the proposed rules is the fact that the rules won't officially be in effect for quite a while. When they do become effective, they may not resemble the proposed rules that the DOL just issued. The proposed rules will be subject to a sixty-day notice and comment period. The DOL then consider those comments and proposes a final set of rules. It's unlikely that the new overtime rules, whatever they turn out to be, will become effective until some time in 2016.</p>
<p>Please feel free to contact us if you need the assistance of a <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">Des Moines employment lawyer</a> or <a title="Overtime Law" href="/practice-areas/overtime-law">Des Moines overtime lawyer</a>.</p>
Wed, 22 Jul 2015 11:46:00 +0000http://erbelaw.com/blog/posts/summarizing-the-u-s-department-of-labor-s-new-proposed-overtime-rules
Landlord Liability For Attacks By A Tenant's Dog<p><img data-rel="225x255" alt="Snarling Dog E1360684279321" title="Snarling Dog E1360684279321" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvNDkvMTMvMjIyL3NuYXJsaW5nX2RvZ19lMTM2MDY4NDI3OTMyMS5qcGciXSxbInAiLCJ0aHVtYiIsIjIyNXgyNTU%2BIl0sWyJwIiwic3RyaXAiXV0/snarling-dog-e1360684279321.jpg" width="225" height="149" /></p>
<p>As noted on our <a title="Dog Bite Law" href="/practice-areas/dog-bite-law">Des Moines dog bite lawyer</a> web page, dog attacks on on rental property by a tenant's dog may create liability for the owner/landlord of the property. The emphasis needs to be on "may" because these claims have proved difficult for plaintiffs to establish under Iowa law. It's much easier to establish liability against the owner of the dog than it is against a landlord.</p>
<p>The reason for this difficulty is that Iowa's dog bite statute, Iowa Code 321.28, only applies to dog "owners." A landlord wouldn't normally be considered a dog's owner. So dog attack claims against landlords are usually brought as <a title="Premises Liability Law" href="/practice-areas/personal-injurywrongful-death-law/premises-liability-law">premises liability</a> claims. That means that Iowa Code 321.28's automatic liability provisions don't apply. Instead, the dog attack victim has the more difficult burden of proving negligence in order to recover against the landlord.</p>
<p>The Iowa Supreme Court first considered this issue in 1995 in <em>Allison v. Page</em>. A child was attacked by a tenant's dog on rental property. The question before the court was whether
a landlord is liable for an injury inflicted by a tenant's dog when the landlord knew or had reason to know that the dog was dangerous.</p>
<p>The court noted that the general rule is that a landlord is not liable for injuries caused by the unsafe condition of the property arising after it is leased, provided there is no agreement to repair. But that general rule is subject to several exceptions. If the landlord retains control of the property, the landlord may be held liable. The landlord also has liability for unsafe conditions and defects in the common areas available to the public. And the landlord remains liable for any conditions existing before or at the time the property is leased. </p>
<p>The court concluded that these general rules foreclosed liability against the landlord in <em>Allison</em>. The landlords did not have any right to control their tenant's dog. The tenant's dog, to the extent it could even be categorized as a condition of the premises, came onto the land after the property was leased. Therefore, in the absence of any other applicable exception, the landlords had no liability for the injuries caused by their tenant's dog. In short, even though the landlord knew that the dog had bitten at least one other person during the time it was kept on the rental property, that didn't create liability against the landlord because the landlord had no obligation to do anything about the dog after it leased the property.</p>
<p>The Iowa Supreme Court revisited this topic four years later in the 1999 case of <em>Jensen v. Mason</em>. This was another case in which a tenant's dog bit someone, but with a few added wrinkles. The victim had moved into the tenant's house along with her family. They lived next door to the landlord, who was the tenant's mother and owned both houses. The two houses shared a backyard that was not fenced or divided in any way. The dog attack happened between the two houses in the single yard.</p>
<p>The <em>Jensen </em>court acknowledged its earlier holding in <em>Allison </em> that landlords are generally not liable for injuries arising from the unsafe condition of the premises arising after the landlord leases the property. But the court also repeated that the rule is subject to several exceptions. One exception includes circumstances in which the landlord retains control, or the landlord and tenant have joint control over the premises where the injury occurs. Generally, this exception applies where the injury is caused by the condition of common areas over which the landlord, alone or jointly with the tenant, has control. In these circumstances, the landlord is liable to one who has been so injured after coming onto the premises at the tenant's invitation if the landlord knew or should have known of the dangerous condition (like a vicious dog) and did nothing to make the property safe.</p>
<p>Unless there is evidence to the contrary, the law presumes that a landlord has retained control over premises used in common by different occupants of the landlord's property. These common areas may be inside or outside the building housing the tenant. The question in <em>Jensen</em> was whether a landlord had a duty to keep common areas reasonably safe by excluding a dog with known vicious propensities.</p>
<p>The court ruled that a landlord has the duty to keep the common areas reasonably safe by excluding a dog known to have vicious propensities.&#160; That rule is subject to two conditions: (1) the injury must have occurred in common areas over which the landlord, alone or jointly with the tenant, has control; and (2) the landlord knew or should have known of the particular dog's vicious propensities. Using those principles, the court then decided that there was sufficient evidence of the landlord's negligence to require a trial in <em>Jensen</em>.</p>
<p>Please feel free to contact us if you need the assistance of a <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">Des Moines personal injury lawyer</a>.
</p>Wed, 15 Jul 2015 06:00:00 +0000http://erbelaw.com/blog/posts/landlord-liability-for-attacks-by-a-tenant-s-dog
The Overtime Exemption For "Partsmen" At Automobile Dealerships<p><img data-rel="225x255" alt="Clock" title="Clock" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDUvMTAvNTkvODg1L2Nsb2NrLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/clock.jpg" width="225" height="207" /></p>
<p>It's come to our attention as <a title="Overtime Law" href="/practice-areas/overtime-law">Des Moines overtime lawyers</a> that some automobile dealerships are trying to avoid paying overtime to their parts department employees by asserting the "partsman exemption" to the federal overtime requirement. Specifically, some employers are telling their parts department employees that if the employees touch parts, that alone, without more, makes the employee ineligible for overtime. But the analysis is more complicated than that.</p>
<p>It's true that certain employees of automobile dealerships, including parts department employees, may be exempt from overtime law under the "automobile dealership exemption." That portion of the federal overtime law exempts “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements, if he is employed by a nonmanufacturing establishment primarily engaged in the business of selling such vehicles or implements to ultimate purchasers.” Let's focus just on the "partsman" exemption.</p>
<p>You can see that there are three requirements for the partsman exemption. The employee must actually be a partsman, which is defined as "any employee employed for the purpose of and primarily engaged in requisitioning, stocking, and dispensing parts." The employer must be primarily engaged in the business of selling the enumerated products. Finally, the parts employee must be "primarily engaged" in selling or servicing the products that the employer's selling.&#160; </p>
<p>"Primarily engaged" means the major part or over 50 percent of the salesman's, partsman's, or mechanic's time must be spent in selling or servicing the enumerated vehicles. As applied to the establishment, primarily engaged means that over half of the establishments annual dollar volume of sales made or business done must come from sales of the enumerated vehicles. If the employer can't meet either or both of those tests than the partsman exemption is inapplicable and the employee must be paid overtime.</p>
<p>Employers who reject overtime for any parts employee, without further analysis, are taking a risk because of the "primarily engaged in selling or servicing the products" requirement. It's not enough for the employee to just fill orders, touch the parts, and deliver the parts. The employee must also be involved in selling or servicing the vehicles the employer's selling. &#160;&#160; </p>
<p>The partsmen exemption has rarely come up in the caselaw. Most overtime cases that involve automobile dealerships concern salespeople, mechanics, finance employees, and similar positions. In fact, there seems to be only one reported federal case, from New York, involving parts employees at automobile dealerships. Dealership owners should heed that case, <em>McBeth v. Gabrielli Truck Sales</em>, as a warning because the employees there engaged in common parts department activities, such as taking parts orders, locating the parts, retrieving the parts, and delivering the parts, sometimes for mechanical work at the dealership, sometimes for outside customers, but didn't sell or service vehicles. The employer argued that those employees weren't entitled to overtime because of the partsmen exemption. But the court held that there was an issue for trial concerning whether the parts employees were primarily engaged in selling or servicing the employer's vehicles or whether they just retrieved and delivered parts. That's an important lesson for employers who classify their parts department employees as exempt under the partsmen exemption because, when you think about it, how many parts department employees are primarily engaged in selling or servicing vehicles? The <em>McBeth </em>decision and the federal overtime law's plain language lead to the conclusion that parts department employees who don't sell or service vehicles are not exempt and are entitled to overtime for any hours worked over forty in a given week.</p>
<p>Please feel free to contact us if you need the assistance of a <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">Des Moines employment lawyer</a>.</p>Wed, 08 Jul 2015 12:34:00 +0000http://erbelaw.com/blog/posts/the-overtime-exemption-for-partsmen-at-automobile-dealerships
Iowa Supreme Court Clarifies Iowa's Wrongful Termination Law<p><img data-rel="225x255" alt="Financial Stress" title="Financial Stress" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMDMvMDYvNjk4L2ZpbmFuY2lhbF9zdHJlc3MuanBnIl0sWyJwIiwidGh1bWIiLCIyMjV4MjU1PiJdLFsicCIsInN0cmlwIl1d/financial-stress.jpg" width="225" height="169" /></p>
<p>Yesterday the Iowa Supreme Court issued an important decision for our work as <a title="Wrongful Termination Law" href="/practice-areas/employment-labor-law/wrongful-termination-law">Des Moines wrongful termination lawyers</a>. Although Iowa's recognized wrongful termination as a legitimate employment law claim for over two decades, since 2000 there's been confusion over exactly what employees need to prove in order to win a wrongful termination claim. Now we have our answer.</p>
<p>Today's case is <em>Terri Rivera v. Woodward Resource Center</em>. Terri Rivera sued Woodward Resource Center for wrongful termination. She claimed that she was fired for reporting incidents of abuse at Woodward Resource Center. Woodward Resource Center contended that it terminated Rivera because she accrued three unscheduled absences. The jury agreed with Woodward and reached a defense verdict.</p>
<p>On appeal to the Iowa Supreme Court the fighting issue concerned the elements that a wrongful termination plaintiff has to prove to succeed. The confusion arose because of an offhand comment that the Iowa Supreme Court made in a 2000 wrongful termination case. Before 2000, it was clear that wrongful termination plaintiffs had to prove three things to win: (1) engagement in a protected activity; (2) adverse employment action; and (3) a causal connection between the two. But in a 2000 decision the Iowa Supreme Court also suggested that wrongful termination plaintiffs must also establish a fourth element, that the employer lacked an overriding business justification for the termination.&#160; </p>
<p>For over a decade after the offhand comment in the 2000 case the comment provided little trouble for the courts. But beginning a few years ago courts began to wrestle with the question of whether the "overriding business justification" element was a separate part of the case or was subsumed within the "causal connection" requirement. In <em>Rivera </em>the Iowa Supreme Court answered that question stating "[w]e thus regard this case as an opportunity to clarify the elements of a wrongful-discharge-in-violation-of-public-policy claim, the allocation of the burden of proof, and the role of legitimate business reasons or justifications in the claim."</p>
<p>The court noted that in order to prevail on a wrongful discharge claim in violation of public policy, the plaintiff must show the protected conduct was the determining factor in the adverse employment action. That's part of the "causal connection" element. A determining factor is one that tips the balance in an employment decision. In order to be the determining factor, it is not necessary the protected conduct be “the main reason behind the decision,” but it must be the factor that makes the difference in the employment outcome.</p>
<p>The court then answered the question about overriding business justifications: "[W]e conclude the lack of legitimate business justification is not an element of the claim that the plaintiff must prove. Because under our cases plaintiffs must prove that the protected conduct was the determining factor, Iowa law does not impose liability on an employer when the determining factor was a legitimate business reason and unlawful retaliation was simply a motivating factor." Instead, an employer's alleged overriding business justification is considered as part of the causation/determining factor element.</p>
<p>In the end, the court's clarification was not enough to save Rivera's case. In a series of acrobatic moves worthy of a Cirque du Soleil performer, the court ruled that the jury instructions did not confuse or mislead the jury even though the court also decided that the jury instructions misstated the law. Rivera was thus not entitled to a new trial.&#160; </p>
<p>Jury instructions are meant to explain the law in plain, simple terms to the juries who decide cases. I cannot understand how jury instructions that <em>misstate the law</em> can adequately serve that purpose. I agree with the two justices who dissented in <em>Rivera</em>. Once the court determined that the trial judge had misstated the law to the jury, it should also have granted Rivera a new trial so that she could have her day in court with a jury that was properly educated on the applicable law. &#160;&#160;</p>
<p>Please feel free to contact us if you need the assistance of a <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">Des Moines employment lawyer</a>.</p>Wed, 01 Jul 2015 06:00:00 +0000http://erbelaw.com/blog/posts/iowa-supreme-court-clarifies-iowa-s-wrongful-termination-law
Liability For Fraud In The Sale Of A Vehicle<p>Most people are familiar with the damage disclosure that must accompany the sale of a vehicle in Iowa. The damage disclosure statement's required by Iowa Code 321.69. But how much trouble can a person get in for not properly disclosing issues during the sale of a vehicle? The answer is, a lot, particularly since passage of Iowa's private consumer fraud law, Iowa Code Chapter 714H.
</p>
<p>The most common claim for undisclosed issues with a vehicle is <a title="Business Practices &amp; Contract Law" href="/practice-areas/business-practices-contract-law">fraud</a>. Fraud requires clear-and-convincing evidence of (1) materiality, (2) falsity, (3) representation, (4) the seller's knowledge of the issue, (5) intent to deceive, (6) justifiable reliance, and (7) resulting injury and damage. The first three elements of a fraud claim are often treated as a single element and are referred to as fraudulent misrepresentation. A representation need not be an affirmative misstatement; the concealment of or failure to disclose a material fact can constitute fraud. But for concealment to be actionable, the representation must relate to a material matter known to the party that it is the party's legal duty to communicate to the other contracting party, whether the duty arises from a relation of trust, from confidence, from inequality of condition and knowledge, or other attendant circumstances. There is no specific test for determining when a duty to reveal arises in fraud cases. But it's generally thought that a misrepresentation may occur when one with superior knowledge, dealing with inexperienced persons who rely on him or her, purposely suppresses the truth respecting a material fact involved in the transaction.</p>
<p>"Justifiable reliance" can mean a couple of things in the vehicle fraud context. In one sense, it means that a potential vehicle buyer can't overlook obvious issues with the car and then later sue for fraud claiming that the issues were misrepresented or not disclosed. But justifiable reliance can also refer to the fact that vehicles often change owners several times. For example, say that the third owner of a vehicle finds an issue that the second owner didn't know about but the first owner did, perhaps an accident and repairs when the original owner had the vehicle. There may not be a good claim against the second owner (who can't disclose or conceal something that's not know to that owner), but can the third owner make a claim against the original owner, even though there's no direct connection between the first and third owners? Absolutely.</p>
<p>Iowa Code 321.69(8) specifically allows for liability against anyone in the ownership chain, even if there's no direct connection between various owners: "A person, authorized vehicle recycler licensed under chapter 321H, or motor vehicle dealer licensed under chapter 322 shall not be liable to a subsequent owner, driver, or passenger of a vehicle because a prior owner or lessee gave a false or inaccurate damage disclosure statement or failed to disclose that the vehicle had previously been damaged and repaired or had been titled on a salvage, rebuilt, or flood certificate of title unless the person, recycler, or dealer knew or reasonably should have known that the prior owner or lessee gave a false or inaccurate damage disclosure statement or failed to disclose that the vehicle had been damaged and repaired or had been titled on a salvage, rebuilt, or flood certificate of title." That's the general fraud law in Iowa anyways -- A person who commits fraud may, upon proper proof, be subject to liability to third persons, not just the original recipient of the fraudulent statement.</p>
<p>As I noted, vehicle fraud claims have become more potent since the enactment of Iowa's private consumer fraud law. A violation of Iowa Code 321.69 is one of the deceptive practices that violate Iowa Code Chapter 714H. That exposes anyone who commits vehicle fraud to a private consumer fraud claim, which could include treble damages, attorney fees, and expenses.</p>Wed, 24 Jun 2015 15:35:00 +0000http://erbelaw.com/blog/posts/liability-for-fraud-in-the-sale-of-a-vehicle
A Text Message To Your Superviser May Be Sufficient Notice Of An FMLA Absence<p><img data-rel="225x255" alt="021749 Doctor Gp Medical Hospital Stethoscope Generic" title="021749 Doctor Gp Medical Hospital Stethoscope Generic" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDMvNTUvNTkvOTY3LzAyMTc0OV9kb2N0b3JfZ3BfbWVkaWNhbF9ob3NwaXRhbF9zdGV0aG9zY29wZV9nZW5lcmljLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/021749-doctor-gp-medical-hospital-stethoscope-generic.jpg" width="225" height="127" /></p>
<p>As we discuss on our Family and Medical Leave Act webpage and blog entries, employees need to give their employers reasonable notice of an absence that they believe might be covered by the FMLA. Employees normally can't just fail to show for work and then later claim that they were ill and had an FMLA-protected absence. But how formal does that notice have to be? The answer to that question largely depends on the individual circumstances of each case.</p>
<p>The United States Court of Appeals for the Eighth Circuit, which includes Iowa's federal courts, recently considered this issue in <em>Delbert Hudson v. Tyson Fresh Meats, Inc. </em>Hudson was fired after he missed several days of work for medical reasons. Before Hudson's first absence he texted his supervisor and told him that he'd be out for a few days because of medical issues. That was the only notice Hudson gave Tyson; he didn't give any notices for the following days he missed.&#160; </p>
<p>When Hudson returned to work, he went to Tyson’s health services with a doctor’s note excusing him from the past week of work, as well as the coming week. Based on the note, Hudson requested leave for the days that he had missed and for several upcoming days. He intended to apply for FMLA leave. He signed a “Leave of Absence Application,” which has boxes for requesting “FMLA” or “Medical (Non FMLA)” leave. The non-FMLA box is checked on Hudson’s application. Hudson denied checking that box and claimed that someone else checked it after he signed the application. Tyson granted Hudson non-FMLA leave.</p>
<p>Tyson immediately fired Hudson when he returned to work. Tyson maintained that Hudson failed to provide proper notification of his medical absences. Hudson sued, claiming Tyson interfered with his FMLA rights and discriminated against him for taking FMLA leave. Hudson claimed that Tyson discriminated against him by firing him for taking FMLA leave.</p>
<p>Tyson countered that it fired Hudson for a legitimate, nondiscriminatory reason: He was a “no call/no show” for multiple days. Tyson clarified that it did not fire Hudson for failing to show up to work, since it granted leave retroactively. Rather, it fired Hudson for failing to follow its medical absence notice procedures, which required a phone call. Violating Tyson’s call-in policy would be a legitimate grounds for firing Hudson under governing law. But there was a dispute on this point because Hudson contended that he gave timely and adequate notice.</p>
<p>The court noted a few points in determining that there was an issue for trial over whether Hudson properly notified Tyson of his medical absences. First, he wasn't scheduled to work on one of the days that he was alleged to be a no call/no show. Second, Tyson's internal records stated that Hudson did provide notice on December 28. Third, there was a question whether Tyson enforced its call-in policy or whether Hudson's text message was sufficient.&#160; </p>
<p>You can see how this decision turned on the case's specific facts. The employee might have lost under different circumstances. The U.S. Department of Labor's FMLA regulations normally require employees to follow the employer’s usual and customary call-in policies. And other courts have determined that failure to adhere to specific call-in policies is fatal to an FMLA claim, including cases in which the employee reported the medical absence by text. In Hudson's case, the court was likely swayed by the disputed evidence that text messaging had previously been acceptable to Tyson.</p>
<p>Please feel free to contact us if you need the assistance of a <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">Des Moines employment lawyer</a> or <a title="Family And Medical Leave Act (FMLA) Law" href="/practice-areas/employment-labor-law/family-and-medical-leave-act-fmla-law">Des Moines Family and Medical Leave Act lawyer</a>.</p>Wed, 17 Jun 2015 12:06:00 +0000http://erbelaw.com/blog/posts/a-text-message-to-your-superviser-may-be-sufficient-notice-of-an-fmla-absence
Calculating Overtime For Salaried Employees<p><img data-rel="225x255" alt="Clock" title="Clock" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDUvMTAvNTkvODg1L2Nsb2NrLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/clock.jpg" width="225" height="207" /></p>
<p>It's generally easy to calculate overtime for hourly employees. They receive time-and-a-half (150%) of their regular hourly rate for all working time over forty hours in a given week. Nothing more, nothing less. But as
<a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">Des Moines employment lawyers</a>
and <a title="Iowa Wage Law" href="/practice-areas/employment-labor-law/iowa-wage-law">Des Moines wage lawyers</a>, we more frequently represent salaried employees who are entitled to overtime. So how do you calculate overtime for someone who receives a flat salary, not an hourly wage?&#160; </p>
<p>The first step is to determine the employee's regular rate of pay. If the employee is employed solely on a weekly salary basis, the regular hourly rate of pay, on which time and a half must be paid, is computed by dividing the salary by the number of hours which the salary is intended to compensate. That sounds simple, but issues can arise over the "intended to compensate" portion of that rule. The fewer hours that the weekly salary is intended to compensate, the better it is for the employee because that'll result in a higher regular hourly rate of pay and thus a higher overtime rate. Therefore employers and employees invariable argue over how many hours per week the salary was meant to compensate.</p>
<p>The thornier question is often the rate at which a salaried employee's overtime hours should be compensated. It's not automatically time-and-a-half. For various reasons, courts frequently award overtime to salaried employees at a rate of only 50% their regular hourly rate ("half time").</p>
<p>A 50% overtime rate for salaried employees usually results through application of the U.S. Department of Labor's "fluctuating workweek" rule. Under that rule, employers need to compensate salaried employees at a 50% overtime rate if certain conditions are met:</p>
<ul><li>The employee is paid a fixed salary that does not vary with the number of hours worked during the workweek.</li>
<li>The salary is sufficiently large to ensure that no workweek will be worked in which the employee's earnings from the salary will fall below federal minimum wage.</li>
<li>The employer and the employee share a "clear mutual understanding" that the salary covers all hours worked during the workweek, regardless of the number of hours worked.</li>
<li>The employee's hours fluctuate from week to week.</li>
</ul>
<p>If any of those conditions are not met then the employer must pay the salaried employee the standard 150% overtime rate.</p>
<p>Some employers fail the fluctuating workweek test because they do not pay their employees a true fixed salary. The full salary has to be paid regardless of the number of hours or days worked. At the same time, certain pay deductions for absences or disciplinary reasons may be permitted, but employers who take such pay deductions are walking a fine line and risk failing the fixed salary component of the fluctuating workweek rule.</p>
<p>The "clear mutual understanding" requirement for application of the fluctuating workweek rule is a common point of dispute in overtime cases involving salaried employees. There is not requirement that the understanding be reduced to writing or be otherwise acknowledged by the employee. The requirement of a clear mutual understanding is satisfied if the employee is generally aware that the salary is intended as compensation for whatever hours the employee works.</p>
<p>Employers and employees also sometimes argue over whether the employee's hours truly "fluctuate" as required for application of the fluctuating workweek rule. A fixed schedule of hours is okay. An employee's schedule need not be unpredictable to be considered fluctuating. The fluctuating workweek rule will still apply when a base number of hours are worked coupled with fluctuating overtime.&#160;</p>
<p>Please feel free to contact us if you need the assistance of a <a title="Overtime Law" href="/practice-areas/overtime-law">Des Moines overtime lawyer</a>.</p>Thu, 11 Jun 2015 12:23:00 +0000http://erbelaw.com/blog/posts/calculating-overtime-for-salaried-employees
Standards For Residential Real Estate Seller Disclosure Documents<p><img data-rel="225x255" alt="Showhomegeo" title="Showhomegeo" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDUvMjAvMjIvMzkyL3Nob3dob21lZ2VvLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/showhomegeo.jpg" width="225" height="150" /></p>
<p>If you've ever bought or sold a house in Iowa, you're probably familiar with the real estate disclosure that Iowa law requires sellers to complete. It's a form that has numerous lines asking questions about the condition of the property and structure. It's meant to inform and protect potential buyers of real estate. Of particular interest to prospective buyers of the property are often things such as water intrusion and the condition of the roof and foundation.&#160; </p>
<p> Iowa Code Chapter 558A is Iowa's Real Estate Disclosure Act. It requires persons interested in transferring real estate to deliver a written disclosure statement to prospective buyers. The disclosure statement must include certain information about the condition and important characteristics and structures on the property. Iowa's real estate commission is charged with adopting more specific rules concerning the mandatory contents of seller disclosure statements.&#160; </p>
<p>Sellers need to take disclosure statements seriously. Many people are mistaken that as long as they don't truly "know" about an issue with the property, they're excused from having to disclose it. Iowa&#160; Code 558A requires more of sellers than that.&#160; Sellers can also violate 558A if they fail to exercise ordinary (reasonable) care in obtaining the information they provide on the seller disclosure statement. That essentially allows for negligence claims under 558A. Buyers don't have to prove fraud or actual knowledge of a property issue in order to prove a violation of 558A.&#160;</p>
<p>This means that sellers have an affirmative duty to investigate the facts of the property before submitting the seller disclosure statement. That is confirmed by 558A, which states that "[a]ll information required by this section and rules adopted by the commission shall be disclosed in good faith. If at the time the disclosure is required to be made, information required to be disclosed is not known or available to the transferor, and a reasonable effort has been made to ascertain the information, an approximation of the information may be used. The information shall be identified as an approximation. The approximation shall be based on the best information available at the time." In short, 558A does not permit willful ignorance about an issue with the property.</p>
<p>This is important because 558A specifically provides for a civil cause of action against anyone who violates it. The seller can be liable to the buyer for the buyer's actual damages incurred because of the defect. A real estate disclosure claim could also be brought under Iowa Code Chapter 714H, Iowa's private consumer fraud statute. A successful 714H claim might allow the buyer to recover triple damages, plus actual damages, and attorney fees and expenses.&#160; </p>
<p>Standard common law fraud claims are also a possibility in real estate disclosure matters, although such claims don't include attorney fees or expenses. But regular fraud claims are very difficult to prove. Further, the only way to get extra money above actual in a regular fraud claim is to recover punitive damages, which is even harder to do than proving regular fraud. For these reasons most people normally opt for the statutory claims available under 558A and 714H.&#160;</p>
<p>Please feel free to contact us if you need the assistance of a <a title="Real Estate Litigation" href="/practice-areas/real-estate-litigation">Des Moines real estate litigation attorney</a>.</p>Wed, 03 Jun 2015 15:11:00 +0000http://erbelaw.com/blog/posts/standards-for-residential-real-estate-seller-disclosure-documents
What Is Contempt Of Court?<p>I recently pointed out to a frustrated client, who believed that the defendant in his case was thumbing his nose at a series of court orders that we had received after a trial, that the fastest way to encourage the defendant to comply with the court orders is to point out that a contempt proceeding would be filed with the court if compliance didn't immediately occur. Contempt of court occurs when someone or a business willfully ignores or violates a court order. Contempt can occur during any of our work as <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">Des Moines employment lawyers</a>, <a title="Employment Discrimination Law" href="/practice-areas/employment-labor-law/employment-discrimination-law">Des Moines employment discrimination lawyers</a>, <a title="Disability Discrimination Law" href="/practice-areas/employment-labor-law/disability-discrimination-law">Des Moines disability discrimination lawyers</a>, <a title="Unlawful Harassment And Hostile Work Environment" href="/practice-areas/employment-labor-law/unlawful-harassment-and-hostile-work-environment">Des Moines workplace harassment lawyers</a>, <a title="Family And Medical Leave Act (FMLA) Law" href="/practice-areas/employment-labor-law/family-and-medical-leave-act-fmla-law">Des Moines FMLA lawyers</a>, <a title="Wrongful Termination Law" href="/practice-areas/employment-labor-law/wrongful-termination-law">Des Moines wrongful termination lawyers</a>, <a title="Car Accidents" href="/practice-areas/car-accidents">Des Moines car accidents lawyers</a>, <a title="Motorcycle Accident Law" href="/practice-areas/motorcycle-accident-law">Des Moines motorcycle accident lawyers</a>, <a title="Dog Bite Law" href="/practice-areas/dog-bite-law">Des Moines dog bite lawyers</a>, <a title="Products Liability/Product Warranty Law" href="/practice-areas/products-liabilityproduct-warranty-law">Des Moines product liability lawyers</a>, <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">Des Moines personal injury and wrongful death lawyers</a>, and <a title="Nursing Home Injuries" href="/practice-areas/nursing-home-injuries">Des Moines nursing home injury lawyers</a>.</p>
<p>Resistance to or violation of an order cannot be considered contempt of court unless it is willful. To support a finding of willful disobedience, the court must find conduct that is intentional and deliberate with a bad or evil purpose, or wanton and in disregard of the rights of others, or contrary to a known duty, or unauthorized, coupled with an unconcern whether the party had the right or not. In Iowa, all actions for contempt are quasi-criminal, even when they arise from civil cases. Therefore, contempt must be established by proof beyond a reasonable doubt.</p>
<p>The party requesting a contempt finding has the burden of proving that the alleged violator (1) had a duty to obey a court order and (2) willfully failed to perform that duty. Once a violation of a court order is proved, the burden shifts to the accused to produce evidence suggesting the violation was not willful. Proof of contempt must be clear and satisfactory. The law only requires that some of the violation was willful in order to establish contempt.</p>
<p>In civil cases, contempt proceedings often follow the entry of an injunction against a person or business. An injunction is a court order requiring a party to do or refrain from doing something. Violation of an injunction may be punishable as contempt.</p>
<p>An injunction must be clear, definite, and unambiguous before it may provide a basis for contempt. In deciding whether a party is in contempt of court for violating an injunction, courts take into consideration the spirit as well as the letter of the injunction to determine if its intent has been honestly and fairly obeyed. No artful attempt to evade it will be allowed to succeed, if the act in fact constitutes a substantial violation of the injunction.</p>
<p>There are only two recognized defenses available to an accused in a contempt action: (1) indefiniteness or uncertainty of the court's order and (2) absence of willfulness in disobeying the order, which was discussed above. A court order must be clear, definite, express, specific, unequivocal, certain, and not rest upon implication or conjecture before it can be the subject of a contempt action. Courts should thus draft orders in a manner that those who must obey them will know what the court intends to require and what it means to forbid. It follows that a court cannot supply by interpretation constraints that are not expressed in an order, especially when the result is to apply powers of the court as formidable as contempt.</p>Wed, 27 May 2015 06:00:00 +0000http://erbelaw.com/blog/posts/what-is-contempt-of-court
Work-Related Social Media Activity As Compensable Working Time<p><img data-rel="225x255" alt="Clock" title="Clock" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDUvMTAvNTkvODg1L2Nsb2NrLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/clock.jpg" width="225" height="207" /></p>
<p>A key issue in <a title="Overtime Law" href="/practice-areas/overtime-law">Des Moines overtime law</a> cases is "working time," or how many hours each week an employee has worked.&#160; If the worker's a nonexempt employee, any work over forty hours in a given week must be compensated at a rate of 150% of the employee's regular rate of pay. That sounds like a simple concept, but it's tricky in application. That's especially true in the internet age when people can be working even while at home and not tethered to a desk. &#160;&#160;</p>
<p>The most common example of remote work done through the use of the internet is of course emails, the compensability of which I wrote about <a target="_blank" title="https://erbelaw.wordpress.com/2012/03/30/overtime-compensation-for-off-shift-work-e-mails-and-cell-phone-calls/" href="https://erbelaw.wordpress.com/2012/03/30/overtime-compensation-for-off-shift-work-e-mails-and-cell-phone-calls/">here</a>. But some organizations require their employees to be active on social media as part of the employer's branding, marketing, or whatever. Some industries and businesses seem to want their employees to have a continuous interactive engagement with customers through social media. Facebook or Twitter posts with pictures or video, followed by responses to the comments that people inevitably post, that sort of thing. So should employees be paid for such work, given that it benefits the employer and cuts into the employee's free time?&#160; I think so.</p>
<p>Federal law includes general guidelines to be used in determining what's compensable work and what isn't. Employers must pay employees for any activities taken on the employer's behalf regardless of where the occur. That includes activities primarily for the employer's benefit before or after the employee leaves the actual physical workplace if the employer knows or should no that the employee's activities are occurring. Also, the employee's activities must be principal activities or integral and indispensable to principal activities in order to count as work.</p>
<p>Overarching those principles is the United States Supreme Court's venerable definition of "work." Work is "physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business." Exertion is not necessary for an activity to count as work.</p>
<p>Even if social media activities constitute working time, sometimes the amount of time engaged in work is so minimal, trivial, or "de minimis" that the time is not compensable. That's not because the courts believe that some work is minor that employee's shouldn't be paid for it. Rather, it's a recognition of the administrative difficulty for employers to track small or infrequent work time. Of course, that begs the question of what is too trivial an amount of time spent on work-related social media activities while at home or somewhere other than the physical employment location. Is fifteen minutes not compensable? What if it was fifteen minutes per day after work five times a week, or 2.5 hours per week? Is that enough to make the social media time compensable?</p>
<p>In conclusion, I think this topic fits into a larger issue that I'm seeing. That is, contrary to the Supreme Court's admonition that work is work even it doesn't require exertion, an increasing number of people consider remote internet work for an employer to not really be work. They're happy to do a little extra work for free after hours and after they've left the office because the internet makes that so easy. I guess if you're able to work on your smartphone while sitting at Starbucks, that's somehow less worthy of pay than if you're accomplishing the exact same task on a computer in an office building? But that viewpoint loses sight of the main work versus nonwork question, which is whether the employee's efforts primarily benefit the employer. If they do, then the employee deserves to be paid for that time regardless of how or where the work is being accomplished. Otherwise, the employee's giving a free benefit to the employer, a benefit that the employer should be paying for.</p>
<p>Please feel free to contact us if you need the assistance of a <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">Des Moines employment lawyer</a>.</p>Wed, 20 May 2015 19:28:00 +0000http://erbelaw.com/blog/posts/work-related-social-media-activity-as-compensable-working-time
Iowa Supreme Court Is "Sold" On Expanding Iowa's Dram Shop Law<p><img data-rel="225x255" alt="Img 0509" title="Img 0509" src="/system/images/W1siZiIsIjIwMTQvMDIvMjEvMDUvNTEvMTEvNTgwL0lNR18wNTA5LmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/IMG_0509.jpg" width="191" height="255" /></p>
<p>A May 8, 2015 Iowa Supreme Court decision has clarified part of Iowa's dram shop law. The dram shop statute creates a special category of <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">Des Moines personal injury</a> cases. It applies to situations in which an intoxicated person injures someone. That intoxicated person is of course legally responsible for the injuries. And in certain situations involving persons or businesses who are licensed or permitted to sell alcohol, the persons or business who sold and served alcohol to the intoxicated person may also be liable for the injuries.&#160; </p>
<p>The most common type of dram shop case involves <a title="Drunk Driving Accidents" href="/practice-areas/car-accidents/drunk-driving-accidents">Des Moines drunk driving accidents</a>, but it can also apply to <a title="Motorcycle Accident Law" href="/practice-areas/motorcycle-accident-law">motorcycle accidents</a>, <a title="Trucking Accidents" href="/practice-areas/car-accidents/trucking-accidents">truck accidents</a>, <a title="Bicycle Accidents" href="/practice-areas/personal-injurywrongful-death-law/bicycle-accidents">bicycle accidents</a>, <a title="Pedestrian Accidents" href="/practice-areas/personal-injurywrongful-death-law/pedestrian-accidents">pedestrian accidents</a>, <a title="Boating Accidents" href="/practice-areas/personal-injurywrongful-death-law/boating-accidents">boating accidents</a>, <a title="Train And Railroad Accident Law" href="/practice-areas/personal-injurywrongful-death-law/train-and-railroad-accident-law--3">train accidents</a>, and <a title="Premises Liability Law" href="/practice-areas/personal-injurywrongful-death-law/premises-liability-law">premises liability accidents</a>. Let's use a <a title="Car Accidents" href="/practice-areas/car-accidents">Des Moines care accident</a> involving an intoxicated driver as an example. If that driver became drunk after being sold and served alcoholic beverages at a bar, the bar could be liable under the dram shop law for the accident along with the driver.&#160; &#160;&#160; </p>
<p>One of the requirements for dram shop liability is that the defendant must have "sold" the alcohol to the person who causes the injuries. The meaning of "sold" was the fighting issue in <em>Sanford v. Fillenwarth</em>. The Sanford family brought suit after Joseph Sanford was injured during a fight with another guest's adult son at an Okoboji resort. The other other guest's adult son had been served complimentary alcohol at the resort.</p>
<p>The resort convinced the trial court to dismiss the case before trial. The resort claimed that the dramshop statute only applies to the sale and service of alcoholic beverages and does not apply to impose liability when the alcoholic beverages were not sold but only served as an amenity of the resort. It also claimed no sale could have been made to the adult son because he was not a paying guest. The Sandfords countered that the statute is broad enough to include alcoholic beverages served by a resort as an amenity.</p>
<p>The Sanfords appealed the trial court's dismissal. The Iowa Supreme Court noted that the dram shop law's "sold and served" was added in 1986. Before then, the statute imposed liability on those "who shall sell or give" alcoholic beverages in violation of the dram shop law. That 1986 change meant that purely gratuitous undertakings no longer created liability under the statute. Thus the Iowa Legislature has drawn a line between a sale and a gift under the statute and has limited dramshop liability for licensees and permittees only when they sell and serve the alcoholic beverage to the intoxicated person who injured another person.</p>
<p>The Iowa Supreme Court considers several factors when determining whether there was a sale of alcoholic beverages. It looks for the presence of consideration, or something given in exchange for the alcohol, which is a basic element of the traditional notion of a sale. The court also looks for evidence of a payment, although payment may be implied from the circumstances.</p>
<p>The court concluded that the intent of the legislature under the dramshop statute was to capture all direct and indirect sales supported by consideration tangibly benefiting the licensee or permittee serving the alcohol. The alcohol the resort served in <em>Sanford </em>was one such indirect sale that could create liability under the dram shop law. The facts indicated that complimentary alcoholic beverages were part of the consideration for the hotel stay. The alcoholic beverages were advertised to prospective guests as one of the amenities of the stay. Therefore, this case is an example of the problem sought to be addressed by the legislature in imposing liability on licensees and permittees who sell and serve excessive liquor as part of their business. The resort served complimentary alcoholic beverages to its guests as part of its regular resort package, not as an isolated occasion.&#160; </p>
<p>Also, as a more direct indication of the fact that guests were actually paying for complimentary alcohol, the resort didn't necessarily provide such amenities during the offseason when it offered discounted rates. As the court observed, this implies alcoholic beverages were not gratuitous. If an amenity is only provided at a specific price point and above, the necessary implication is that the cost of that amenity is only covered at the higher price point and is therefore part of the higher price.</p>
<p>The Iowa Supreme Court also had to address the issue of whether the resort "sold" alcohol to the nonpaying guest who injured Sanford during the fight, the adult son of the paying guest. The court decided that the son's status as a nonpaying guest made no difference to the resort's potential dram shop liability. The son was a third-party intended beneficiary of the amenities that came with the lodging his father purchased.&#160; That was sufficient to extend the resort's possible liability to the son's conduct.</p>
<p>The court ultimately reversed the district court's dismissal. Under the circumstances of the case alcohol was "sold" within the dram shop's law meaning of that word. And because the complimentary alcohol was an amenity that extended to the paying guest's adult son, the complimentary alcohol was "sold" to the son to. For these reasons the case will be allowed to proceed to trial.</p>Wed, 13 May 2015 06:00:00 +0000http://erbelaw.com/blog/posts/iowa-supreme-court-is-sold-on-expanding-iowa-s-dram-shop-law
It's Time For A Serious Discussion About Noncompete Agreements<p><img data-rel="225x255" alt="Office" title="Office" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDMvNDcvMzMvMjIyL09mZmljZS5qcGciXSxbInAiLCJ0aHVtYiIsIjIyNXgyNTU%2BIl0sWyJwIiwic3RyaXAiXV0/Office.jpg" width="170" height="255" /></p>
<p>Listen everyone. Noncompete agreements under Iowa law are not a joke. They're not some forgotten part of employment contracts that everyone, including employers, ignores. To the contrary, employers take <a title="Business Practices &amp; Contract Law" href="/practice-areas/business-practices-contract-law">Iowa noncompete agreements</a> very seriously. You should too.</p>
<p>I previously wrote about noncompete agreements <a target="_blank" title="https://erbelaw.wordpress.com/2008/03/20/enforceability-of-noncompete-agreements/" href="https://erbelaw.wordpress.com/2008/03/20/enforceability-of-noncompete-agreements/">here</a>. A noncompete agreement can appear in various forms and still be binding. For employees who have an employment contract, the noncompete agreement often appears right in the contract. Other employees, even those who are at-will and not contract employees, are required to sign a separate noncompete agreement if they want to get or keep a job. That's perfectly legal in Iowa.</p>
<p>Noncompete agreements are generally valid and enforceable in Iowa, same as any other contract. Noncompete agreements are usually upheld as long as they're reasonably necessary for protection of the employer's business, are not unreasonably restrictive of the employee's right to earn a living, and are not against the public interest. Even if any of that's a problem, a court can judicially modify a noncompete agreement to bring it within permissible parameters.</p>
<p>Courts consider several factors in determining whether a noncompete agreement's reasonably necessary for an employer's protection. They'll look at how much competition the employer already has in the marketplace. They'll consider whether the employee received special training or knowledge during the employment. Also important is whether the employee worked in close proximity to the employer's customers and may have a chance to pirate them after leaving the employment. Those are just a few examples of the important factors under the "reasonably necessary" test. The more of them that are present, the more likely that the noncompete agreement will be enforced.</p>
<p>In terms of whether a noncompete agreement's restrictions on an employee are unreasonable, courts primarily look at the noncompete's duration and geographical scope. The noncompete agreement can't last too long or cover too much area. A lesser consideration is whether the employee has any education, skills, or training that would allow the employee to work outside the scope of the noncompete agreement.&#160;&#160;</p>
<p>Violation of a noncompete agreement, even conduct that gives the appearance of an actual or potential violation, can have serious consequences. A court can order temporary and permanent injunctive relief against an employee to prevent violations of a noncompete agreement. An employer can also seek money damages for any proved violation of a noncompete agreement. And, for contract employees, most employment contracts have an attorney fee provision that allows the employer to recover attorney fees and expenses if successful in legal action regarding a noncompete. All of that is serious stuff.</p>
<p>Another fun thing that employers do outside the legal system is send warning letters to various people about a former employee's noncompete agreement. If an employee goes to work for a competitor in violation of a noncompete agreement, there's a good chance that the former employer will have its lawyers send the new employer a letter notifying it of the existence of the noncompete and leveling an implied, or sometimes explicit, threat of litigation if the employee isn't immediately fired. That usually results in the end of that employee's time with the new employer.</p>
<p>Noncompete agreements can also prohibit former employees from establishing a competing business. If a former employee tries that, a common reaction from the former employer is lawyer letters to the competing business's customers, vendors, partners, etc. Similar to the letter described in the preceding paragraph, except the former employee sees business dry up rather than the end of a job. &#160;&#160;</p>
<p>Please feel free to contact us if you need the assistance of a <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">Des Moines employment lawyer</a>.</p>Wed, 06 May 2015 11:37:00 +0000http://erbelaw.com/blog/posts/it-s-time-for-a-serious-discussion-about-noncompete-agreements
Iowa's Sexual Harassment And Constructive Discharge Law Isn't Improving<p><img data-rel="225x255" alt="Office" title="Office" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDMvNDcvMzMvMjIyL09mZmljZS5qcGciXSxbInAiLCJ0aHVtYiIsIjIyNXgyNTU%2BIl0sWyJwIiwic3RyaXAiXV0/Office.jpg" width="170" height="255" /></p>
<p>On April 22, 2015 the Iowa Court of Appeals shot down another sexual harassment/constructive discharge claim in <em>Wright v. Ross Holdings</em>. The <em>Wright </em>decision follows the Iowa Court of Appeals's January evisceration of another sexual harassment claim, which I wrote about <a target="_blank" title="http://erbelaw.com/blog/posts/iowa-court-of-appeals-emphasizes-limits-of-harassment-hostile-work-environment-cases" href="http://erbelaw.com/blog/posts/iowa-court-of-appeals-emphasizes-limits-of-harassment-hostile-work-environment-cases">here</a>.<em> Wright </em>also highlighted the difficulties we face as <a title="Wrongful Termination Law" href="/practice-areas/employment-labor-law/wrongful-termination-law">Des Moines wrongful termination lawyers</a> and <a title="Employment Discrimination Law" href="/practice-areas/employment-labor-law/employment-discrimination-law">Des Moines employment discrimination lawyers</a> in trying to prove a wrongful termination claim when the employee <a target="_blank" title="http://erbelaw.com/blog/posts/quitting-and-then-claiming-wrongful-termination-is-difficult" href="http://erbelaw.com/blog/posts/quitting-and-then-claiming-wrongful-termination-is-difficult">voluntarily quits</a>.</p>
<p>Carrie Wright sued her former employer, Ross Holdings for sexual harassment and constructive discharge. She alleged that she was sexually harassed by several employees. One of them stared at her chest and said that he liked the color of her eyes. Employees began calling Wright “blue eyes.” A female supervisor told Wright that "blue eyes" meant that people did not know the color of her eyes because they were looking at her breasts. Employees continued to use that nickname for Wright for approximately the next five years.</p>
<p>In 2010 a male supervisor made comments to Wright when they had an unplanned encounter at a bar. The supervisor told Wright that she was the “hottest blonde in the bar” and that she should dress up like that for work. He proceeded to buy shots for Wright’s table, sit close to Wright, and rub her back. Wright left the table, but later the supervisor approached Wright when she was outside with her cousin. He offered to give her a ride home and, while making other sexual comments, suggested they go to his house. At no time did Wright express she was offended by his comments.&#160;</p>
<p>Wright reported the bar incident to her supervisor. That was Wright's first and only complaint about the other supervisor. Wright was offered a leave of absence while the matter was being investigated. The supervisor also told Wright that she may have an attorney contact her. Wright interpreted that as a threatening comment. Wright ultimately resigned her position. The employer conducted an investigation into the bar incident. That supervisor was fired for violating the Ross employer's fraternization policy. That same day, Wright's supervisor called her, explained that Marlow had been terminated, and asked Wright to return to her job. Wright decided not to return. Wright testified in her deposition she would have resigned regardless of whether the supervisor was terminated, that she had no desire to resign before the bar incident, and that she did so because of the supervisor’s conduct at the bar.&#160; </p>
<p>Wright's lawsuit followed her termination. She claimed that the above conduct created a hostile working environment based on her sex. Wright also asserted that the conduct forced her to quit and constituted a constituted a constructive discharge.</p>
<p>The Iowa Court of Appeals first analyzed Wright's constructive discharge claim. The court observed that constructive discharge exists when the employer deliberately makes an employee’s working conditions so intolerable that the employee is forced into an involuntary resignation. A constructive discharge has not occurred unless the employer has been given a reasonable chance to resolve the problem. At the same time, an employee need not stay if she reasonably believes that there is no possibility the employer will respond fairly. A constructive discharge can occur regardless of the employer’s desire to keep the employee in their position.</p>
<p>The court concluded that Wright did not allow her employer a reasonable chance to investigate and address the bar incident. Wright reported that incident a few days after it happened. She quit shortly thereafter. Her employer had just begun its investigation at that time.&#160; The court believed that Wright could have taken steps short of resignation to improve her working conditions, but she declined to do so. The court also declined to give any weight to Wright's belief that her complaint about the bar incident wouldn't be taken seriously, that the bar incident was so serious that she had no choice but to immediately resign, that the bar incident was part of a continuous pattern of harassment, or that asking her to speak with a lawyer was a veiled threat. Thus the court rejected Wright's constructive discharge claim.</p>
<p>The Iowa Court of Appeals also rejected Wright's sexual harassment claim. The court noted that a hostile working environment/sexual harassment claim requires extreme conduct rather than merely rude or unpleasant conduct. If sexual harassment in the workplace is so pervasive and severe that the employee must endure an unreasonably offensive environment or quit working, the sexual harassment affects a condition of employment. To establish that harassment was severe or pervasive, employees must not only show that they subjectively perceived the conduct as abusive, but that a reasonable person would also find the conduct to be abusive or hostile. The objective determination considers all of the circumstances, including the frequency of the conduct, the severity of the conduct, whether the conduct was physically threatening or humiliating or whether it was merely offensive, and whether the conduct unreasonably interfered with the employee’s job performance. Applying those factors to the conduct that Wright experienced, as summarized above, the court concluded that she did not experience a hostile working environment based on sex.</p>
<p>Please feel free to contact us if you need the assistance of a <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">Des Moines employment lawyer</a> or <a title="Unlawful Harassment And Hostile Work Environment" href="/practice-areas/employment-labor-law/unlawful-harassment-and-hostile-work-environment">Des Moines workplace harassment lawyer</a>.</p>Wed, 29 Apr 2015 06:00:00 +0000http://erbelaw.com/blog/posts/iowa-s-sexual-harassment-and-constructive-discharge-law-isn-t-improving
A Reminder About The Need For Medical Evidence To Prove Your Personal Injury Case<p><img data-rel="225x255" alt="First Aid Kit 006" title="First Aid Kit 006" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMjUvNTUvNjU3L0ZpcnN0X2FpZF9raXRfMDA2LmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/First-aid-kit-006.jpg" width="225" height="135" /></p>
<p>If you have a <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">Des Moines personal injury law</a> matter, proving the defendant's liability is not enough. You also have to prove injuries and damages resulting from the defendant's fault. That's true regardless of whether your injuries were caused by a <a title="Car Accidents" href="/practice-areas/car-accidents">Des Moines car accident</a>, <a title="Drunk Driving Accidents" href="/practice-areas/car-accidents/drunk-driving-accidents">Des Moines drunk driving accident</a>, <a title="Trucking Accidents" href="/practice-areas/car-accidents/trucking-accidents">Des Moines truck accident</a>, <a title="Motorcycle Accident Law" href="/practice-areas/motorcycle-accident-law">Des Moines motorcycle accident</a>, <a title="Train And Railroad Accident Law" href="/practice-areas/personal-injurywrongful-death-law/train-and-railroad-accident-law--3">Des Moines train accident</a>, <a title="Pedestrian Accidents" href="/practice-areas/personal-injurywrongful-death-law/pedestrian-accidents">Des Moines pedestrian accident</a>, <a title="Bicycle Accidents" href="/practice-areas/personal-injurywrongful-death-law/bicycle-accidents">Des Moines bicycle accident</a>, <a title="Boating Accidents" href="/practice-areas/personal-injurywrongful-death-law/boating-accidents">Des Moines boating accident</a>, a <a title="Fire And Explosion Law" href="/practice-areas/personal-injurywrongful-death-law/fire-and-explosion-law">Des Moines fire or explosion accident</a>, a <a title="Products Liability/Product Warranty Law" href="/practice-areas/products-liabilityproduct-warranty-law">defective product</a>, <a title="Dog Bite Law" href="/practice-areas/dog-bite-law">a dog bite</a>, or <a title="Nursing Home Injuries" href="/practice-areas/nursing-home-injuries">nursing home negligence</a>.</p>
<p>In a previous blog <a target="_blank" title="https://erbelaw.wordpress.com/2013/08/20/the-importance-of-your-treating-doctor-in-a-personal-injury-case/" href="https://erbelaw.wordpress.com/2013/08/20/the-importance-of-your-treating-doctor-in-a-personal-injury-case/">post</a> I discussed the fact that medical evidence through a doctor is often essential to proving your injuries and damages in a personal injury case. That fact was emphasized by a bad result for the plaintiffs in the April 22, 2015 Iowa Court of Appeals decision in <em>Reed v. Schaefer</em>. The Reeds sued for personal injuries arising out of a car accident. They didn't get the damages the wanted from the jury. They appealed.</p>
<p>At trial the Reeds did not have their medical records in evidence. They also did not offer the testimony of any of their treating doctors. The jury returned a verdict in the Reeds' favor but only awarded medical expenses and a few thousand dollars on top of that.&#160; On appeal the Reeds argued that the damages were inadequate. They sought a new trial.</p>
<p>One cause of the low damage award was the trial judge's ruling prohibiting the Reeds from offering any testimony concerning the nature and extent of permanency of their own conditions because they did not have the medical expertise required to render said opinions. Damages are available for future issues if an injury is proved to be one that'll last permanently (or even temporarily) into the future. But that proof has to come through a medical professional's testimony. The Reeds didn't have any such testimony so they were denied the opportunity to argue that they were entitled to future damages because of their permanent injuries.&#160; </p>
<p>In her closing argument the defense attorney summarized the reasons why the jury could decline to award the Reeds substantial damages: "This is a personal injury lawsuit asking you to assess damages for injuries the Reeds suffered and they didn’t bring in any medical testimony. They didn’t bring in medical records, they didn’t bring in doctors, they didn’t bring in nurses. They didn’t bring in anyone to talk about the medical. You never heard a diagnosis, not one diagnosis. There was no doctor that limited [Mrs. Reed’s] activity, you didn’t hear a doctor saying how long the problems would last. You heard about all the nurses and doctors running around the emergency department, but none of them were called to testify, and it is [the Reeds’] burden of proof."&#160; </p>
<p>The moral of the story: Don't get so caught up in proving the defendant's liability that you overlook securing the proof necessary to establish all the injuries and damages that you wish to make a claim for.</p>Wed, 22 Apr 2015 16:15:00 +0000http://erbelaw.com/blog/posts/a-reminder-about-the-need-for-medical-evidence-to-prove-your-personal-injury-case
Clearing Up Confusion About The ADA's "Interactive Process" For Reasonable Accommodation Claims<p><img data-rel="225x255" alt="Handicap" title="Handicap" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDMvNTEvMTcvNzk4L0hhbmRpY2FwLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/Handicap.jpg" width="170" height="255" /></p>
<p>I've recently received a few <a title="Disability Discrimination Law" href="/practice-areas/employment-labor-law/disability-discrimination-law">Des Moines disability discrimination law</a> calls (from both employers and employees) that indicate that there's some confusion concerning the type of information that an employee is required to provide as part of requesting a reasonable work accommodation under the Americans with Disabilities Act. Employees have to cooperate with the process of requesting a reasonable disability accommodation. They can't just demand a disability accommodation and expect their employer to grant it with no further questions asked.</p>
<p>I commonly hear two <a title="Employment Discrimination Law" href="/practice-areas/employment-labor-law/employment-discrimination-law">employment discrimination</a> questions, particularly from employees, about employers' rights when an employee requests a reasonable disability accommodation. First, does the employer have a right to inquire into the employee's requested accommodation, or does the employer just have to allow the accommodation? Second, do patient privacy and confidentiality laws prohibit the employer from seeking information about the underlying medical condition that the employee believes has caused the impairment and disability necessitating an accommodation? The answer to both questions is yes, to a certain extent.</p>
<p>Employees' misunderstanding of employers' rights during the reasonable accommodation process can put the employee in a bad situation and perhaps out of a job. Theoretically, if an employee can't perform the essential functions of a job because of a disability, and doesn't cooperate in the reasonable accommodation process, the employer doesn't have to grant a reasonable accommodation. It can fire the employee instead. The employer's attempt to discuss the requested accommodation with the employee, and the employee's refusal to do so, could later be a defense for the employer to any disability discrimination claims the employee brings. &#160; </p>
<p>The Equal Employment Opportunity Commission requires that employers engage in an "interactive process" with employees who have requested a disability accommodation. The interactive process serves several purposes. It helps the employer determine whether:</p>
<ul><li>The employee has a disability within the meaning of the Americans with Disabilities Act.</li>
<li>Whether the requested accommodation is reasonably necessary to allow the employee to continue working notwithstanding the disability.</li>
<li>Whether the requested accommodation will be an undue hardship for the employer.</li>
<li>Whether there are alternative accommodations that would still help the employee while not placing as much of an undue hardship on the employer.</li>
<li>Whether the employee has the qualifications for and interest in a different position that may be a better accommodation for the employee.</li>
</ul>
<p>As part of the interactive process, employers have the right to ask employees pertinent questions that will help them reach an informed decision regarding the reasonable disability accommodation request. Employers are permitted to seek information concerning an employee's requested disability accommodation, the nature of the disability underlying the employee's request, the employee's thoughts on how the disability has caused the need for an accommodation. While employees don't have to identify the exact accommodation, they do need to describe how their disability is effecting their ability to work,</p>
<p>Medical privacy is a frequent concern of callers to our firm who are not happy with their employers' responses to disability accommodation requests. Employees who have requested a disability accommodation must understand that they may lose their medical privacy rights by doing so. Employers often need, and are entitled to request, an employee's medical information and documentation as part of the interactive process discussed above. Employers use that medical information to determine whether the employee has a qualifying disability within the meaning of the ADA, to evaluate whether the employee requires a reasonable accommodation, and to analyze whether there may be effective accommodation options other than what the employee's requested. We hear similar concerns and questions as <a title="Family And Medical Leave Act (FMLA) Law" href="/practice-areas/employment-labor-law/family-and-medical-leave-act-fmla-law">Des Moines Family and Medical Leave Act lawyers</a>. The short answer is that employees who are seeking disability accommodations or medical absences will likely have to forego at least some of their medical privacy or possibly face denial of their request. </p>
<p>Please feel free to contact us if you need the assistance of a <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">Des Moines employment lawyer</a>.</p>Wed, 15 Apr 2015 06:00:00 +0000http://erbelaw.com/blog/posts/clearing-up-confusion-about-the-ada-s-interactive-process-for-reasonable-accommodation-claims
"Waive" Goodbye To Your Personal Injury Claim <p><img data-rel="225x255" alt="Gt Rowan County Ambulance" title="Gt Rowan County Ambulance" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvNDAvNDQvNjgxL0dUX3Jvd2FuX2NvdW50eV9hbWJ1bGFuY2UuSlBHIl0sWyJwIiwidGh1bWIiLCIyMjV4MjU1PiJdLFsicCIsInN0cmlwIl1d/GT_rowan_county_ambulance.JPG" width="225" height="134" /></p>
<p>In a rather unusual case, on March 25, 2015 the Iowa Court of Appeals ruled in <em>Matthew D. Hargrave v. Grain Processing Corporation </em>that a written employment agreement between an injured employee and his employer foreclosed a personal injury claim against a company, Grain Processing Corporation, where the employee was temporarily assigned.</p>
<p>The plaintiff, Matthew Hargave, completed an employment application with Team Staffing. Team Staffing had an agreement to provide temporary employees for Grain Processing Corporation. The application contained the following statement: "Legal Remedies: I acknowledge and agree that even though my work related activities may be under the control and direction of the Customer, my sole legal remedies in the event of a work related injury will be the Company’s workers’ compensation insurance and will not include any claim for damage against that Customer. My signature below certifies that I have read, understand and agree to abide by the conditions set forth. By signing this document, I agree to these terms and conditions, whether or not I am employed by Team Staffing Solutions, Inc." The application defined the term "Company" as Team Staffing Solutions, Inc. The term "Customer" was defined as "Team Staffing’s Customer with whom employee may be assigned to provide temporary services." Hargrave signed and dated the application and was hired by Team Staffing.</p>
<p>Hargrave was later injured while working for Team Staffing at a plant owned by Grain Processing Corporation. He sued Grain Processing Corporation for personal injuries. Grain Processing Corporation argued for dismissal of the case based on the language quoted above from the written agreement between Hargrave and Team Staffing. The trial court agreed and dismissed the case. Hargrave appealed.</p>
<p> Hargrave first argued that the immunity provision shouldn't apply because he was a "casual reader" of the immunity language in his employment application. Iowa courts do not uphold contractual provisions releasing future claims where release of such claims would not be apparent to a casual reader. The Iowa Court of Appeals skipped past that argument without much analysis. I thought that was rather odd.</p>
<p>The court spent most of its analysis considering Hargrave's argument that the immunity provision wasn't enforceable because it was ambiguous.&#160; Hargrave contended that the "Legal Remedies" provision in the employment application was not sufficiently clear and unequivocal to put him on notice that he was waiving all claims relating to Grain Processing Corporation’s potential negligence. He pointed out that the terms "legal remedies," "claim," and "damage," are not defined in the employment application. He also noted that the provision did not specifically indicate that he would be waiving all future claims against Grain Processing Corporation.</p>
<p>The court decided that the "Legal Remedies" provision was not ambiguous and was enforceable. It thought it was clear from the language of the “Legal Remedies” provision that Hargrave agreed to waive all legal remedies arising from a work-related injury except for claims available through Team Staffing’s workers’ compensation insurance coverage. Though the terms of the provision were not defined, the terms are commonly used and were not presented in a manner that created ambiguity in their meaning. For that, the immunities provision applied to Hargrave's claim against Grain Processing Corporation and the trial court properly dismissed the case.</p>
<p>Please feel free to contact is if you need the assistance of a <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">Des Moines employment lawyer</a> or <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">Des Moines personal injury lawyer</a>.</p>Thu, 09 Apr 2015 06:00:00 +0000http://erbelaw.com/blog/posts/waive-goodbye-to-your-personal-injury-claim
United States Supreme Court Clarifies Federal Pregnancy Discrimination Law<p><img data-rel="225x255" alt="Office" title="Office" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDMvNDcvMzMvMjIyL09mZmljZS5qcGciXSxbInAiLCJ0aHVtYiIsIjIyNXgyNTU%2BIl0sWyJwIiwic3RyaXAiXV0/Office.jpg" width="170" height="255" /></p>
<p>On March 26, 2015 the United States Supreme Court issued a decision in <em>Young v. UPS </em>that will effect our practice as <a title="Employment Discrimination Law" href="/practice-areas/employment-labor-law/employment-discrimination-law">Des Moines employment discrimination lawyers</a>. Federal pregnancy discrimination law was at issue in the case. I've previously written about the federal Pregnancy Discrimination Act <a target="_blank" title="http://www.erbelaw.com/blog/posts/the-legal-protections-for-pregnant-employees" href="http://www.erbelaw.com/blog/posts/the-legal-protections-for-pregnant-employees">here</a>. &#160; </p>
<p><em>Young </em>involved an employee, Peggy Young, who had doctor-imposed lifting restrictions during her pregnancy. UPS told Young that she could not work while under a lifting restriction. Young consequently stayed home without pay during most of the time she was pregnant and eventually lost her employee medical coverage.</p>
<p>Young later sued UPS for pregnancy discrimination. She claimed that UPS acted unlawfully in refusing to accommodate her pregnancy-related lifting restriction. Young said that her co-workers were willing to help her with heavy packages. She also said that UPS accommodated other drivers who were "similar in their . . . inability to work." She accordingly concluded that UPS must accommodate her as well.</p>
<p>UPS responded that the other persons whom it had accommodated were (1) drivers who had become disabled on the job, (2) those who had lost their Department of Transportation (DOT) certifications, and (3) those who suffered from a disability covered by the Americans with Disabilities Act of 1990 (ADA). UPS said that, since Young did not fall within any of those categories, it had not discriminated against Young on the basis of pregnancy but had treated her just as it treated all employees in similar situations.</p>
<p>At issue in the case were federal laws that prohibit employment discrimination against pregnant women. Title VII of the Civil Rights Act of 1964 forbids a covered employer to "discriminate against any individual with respect to . . . terms, conditions, or privileges of employment, because of such individual's . . . sex." In 1978, Congress enacted the Pregnancy Discrimination Act, which added new language to Title VII and specified that Title VII's "ter[m] `because of sex' . . . include[s] . . . because of or on the basis of pregnancy, childbirth, or related medical conditions." The Pregnancy Discrimination Act further states that "women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work . . . ."&#160; </p>
<p>It's important to note that <em>Young</em> did not involve a <a title="Family And Medical Leave Act (FMLA) Law" href="/practice-areas/employment-labor-law/family-and-medical-leave-act-fmla-law">Family and Medical Leave Act</a> claim. Young wanted to work, make money, and retain her health insurance coverage. She did not want to stay home on unpaid leave. The question was whether UPS should've allowed Young to keep working by granting her request for a temporary work accommodation.</p>
<p>Nor did <em>Young </em>implicate the Americans with Disabilities Act Amendments Act (ADAAA), which I've written about before on this blog. Those amendments to federal <a title="Disability Discrimination Law" href="/practice-areas/employment-labor-law/disability-discrimination-law">disability discrimination law</a> weren't in effect at the time of the events in <em>Young</em>. The Court in <em>Young </em>specifically noted that the ADAAA was not part of its decision.</p>
<p>Ultimately, despite a lot of excitement leading up to the case from various sectors, the Court ruled that pregnancy discrimination claims should be analyzed like any other type of discrimination claim under federal law. In other words, federal law prohibits employers from discriminating against employees based on their pregnancy. So an employee asserting a pregnancy discrimination claim has to meet the same elements as an employee asserting race, sex, or other types of discrimination.</p>
<p>Of course, one way to prove such a case is to have explicit evidence that the employee's pregnancy was the reason behind the employer's decision. But such "direct evidence" is hard to come by and rarely available in employment discrimination cases. Thus, a plaintiff alleging that the denial of an accommodation constituted discrimination under the Pregnancy Discrimination Act second may instead use circumstantial evidence by proving that she belongs to the protected class (pregnant female), that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others "similar in their ability or inability to work."</p>
<p>The employer may then seek to justify its refusal to accommodate the plaintiff by relying on "legitimate, nondiscriminatory" reasons for denying her accommodation. But that reason normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those "similar in their ability or inability to work" whom the employer accommodates. The employer has the burden of proving that a legitimate, nondiscriminatory reason existed for its denial of the employee's requested pregnancy accommodation.</p>
<p>If the employer offers an apparently "legitimate, nondiscriminatory" reason for its actions, the plaintiff may in turn show that the employer's proffered reasons "pretextual," or false. A plaintiff may do so by providing sufficient evidence that the employer's policies impose a significant burden on pregnant workers, and that the employer's "legitimate, nondiscriminatory" reasons are not sufficiently strong to justify the burden, but rather—when considered along with the burden imposed—give rise to an inference of intentional discrimination. A pregnancy discrimination plaintiff can also prove that a significant burden exists by providing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers.&#160;</p>
<p>Please feel free to contact us if you need the assistance of a <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">Des Moines employment lawyer</a>.</p>Mon, 06 Apr 2015 11:56:00 +0000http://erbelaw.com/blog/posts/united-states-supreme-court-clarifies-federal-pregnancy-discrimination-law
Iowa Supreme Court Limits Access To Mental Health Records In Civil Lawsuits<p><img data-rel="225x255" alt="Office" title="Office" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDMvNDcvMzMvMjIyL09mZmljZS5qcGciXSxbInAiLCJ0aHVtYiIsIjIyNXgyNTU%2BIl0sWyJwIiwic3RyaXAiXV0/Office.jpg" width="170" height="255" /></p>
<p>On April 3, 2015 the Iowa Supreme Court issued its decision in <em>Cameron Fagen v. Grandview University</em>. The case concerned the extent to which defense attorneys can go in civil lawsuits in obtaining a plaintiff's mental health records. <em>Fagen </em>was the first time that the Iowa Supreme Court addressed this question. The case has implications for our work as <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">Des Moines employment lawyers</a>, <a title="Employment Discrimination Law" href="/practice-areas/employment-labor-law/employment-discrimination-law">Des Moines employment discrimination lawyers</a>, <a title="Disability Discrimination Law" href="/practice-areas/employment-labor-law/disability-discrimination-law">Des Moines disability discrimination lawyers</a>, <a title="Unlawful Harassment And Hostile Work Environment" href="/practice-areas/employment-labor-law/unlawful-harassment-and-hostile-work-environment">Des Moines workplace harassment lawyers</a>, <a title="Family And Medical Leave Act (FMLA) Law" href="/practice-areas/employment-labor-law/family-and-medical-leave-act-fmla-law">Des Moines FMLA lawyers</a>, <a title="Wrongful Termination Law" href="/practice-areas/employment-labor-law/wrongful-termination-law">Des Moines wrongful termination lawyers</a>, <a title="Car Accidents" href="/practice-areas/car-accidents">Des Moines car accidents lawyers</a>, <a title="Motorcycle Accident Law" href="/practice-areas/motorcycle-accident-law">Des Moines motorcycle accident lawyers</a>, <a title="Dog Bite Law" href="/practice-areas/dog-bite-law">Des Moines dog bite lawyers</a>, <a title="Products Liability/Product Warranty Law" href="/practice-areas/products-liabilityproduct-warranty-law">Des Moines product liability lawyers</a>, <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">Des Moines personal injury and wrongful death lawyers</a>, and <a title="Nursing Home Injuries" href="/practice-areas/nursing-home-injuries">Des Moines nursing home injury lawyers</a>.</p>
<p>Cameron Fagen brought a <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">Des Moines personal injury law</a> claim against Grandview University and other defendants. Among other types of damages, he claimed "garden variety" emotional distress damages, meaning that he wasn't claiming he suffered a permanent mental disability because of the incident at Grandview University or anything like that. But because he claimed emotional distress damages, the defense attorneys sought, and the trial court ordered Fagen to produce, his mental health records from his childhood. Fagen appealed the trial court's decision.</p>
<p>It's interesting to note that <em>Fagen</em> was not a majority decision by the Iowa Supreme Court. It was a "plurality" decision. There are seven members of the Iowa Supreme Court. Only three voted in favor of the decision I discuss here. One justice supported the result of the case but didn't concur with the court's written opinion. Three justices dissented. Since only three judges out of seven supported the court's written opinion, it's only considered a plurality opinion, which is not as meaningful as a majority opinion in which at least four of the seven judges concur.&#160;</p>
<p>Getting back to the plurality decision, the court ruled that the trial court shouldn't have automatically allowed access to Fagen's past mental health records simply because he claimed "garden variety" emotion distress. Instead, a balancing test is necessary. When a party refuses to provide access to mental health records, the court must make sure that the party seeking the records is not permitted to go on an unlimited fishing expedition into a party’s mental health records. Therefore, the person requesting the records must make a showing that there is a reasonable basis to believe that the specific records are likely to contain information relevant to an element or factor of the claim or defense of the person or of any party trying to avoid producing the records. The person seeking the mental health records need only advance some good-faith factual basis demonstrating how the records are reasonably calculated to lead to admissible evidence germane to an element or factor of the claim or defense. If the party seeking the mental health records can make that showing, the patient–physician privilege is lost as to those records and the party requesting the records shall be entitled to them.</p>
<p>This decision is a welcome change in Iowa. For too long, trial court judges have seemed to view the filing of a lawsuit as <em>carte blanche </em>permission for defense attorneys to get access to every single mental health or medical record from a person's past. We hope that the <em>Fagen </em>ruling will be the beginning of an effort to curtail such wide-ranging explorations of a litigant's past, which often seem geared more towards humiliating the litigant rather than finding any information that might actually be pertinent to and useful in the lawsuit.</p>Sat, 04 Apr 2015 17:03:00 +0000http://erbelaw.com/blog/posts/iowa-supreme-court-limits-access-to-mental-health-records-in-civil-lawsuits
Iowa Court Of Appeals Says Pond Builders Can Be Sued For Defective Construction<p><img data-rel="225x255" alt="House" title="House" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDMvMjEvMTIvMTYzL0hvdXNlLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/House.jpg" width="170" height="255" /></p>
<p>In the March 25, 2015 decision of <em>Reilly Construction Co. v. Bachelder, Inc.</em>, the Iowa Court of Appeals applied defective construction principles to a dispute over construction of a pond on private land. The Bachelders wanted to add a pond to their property to be used for recreational purposes. Reilly Construction agreed to build the pond. The pond later had trouble holding water. It was determined that the pond was sited on poor soil that prevented the pond from holding water.</p>
<p>Bachelder asserted claims against Reilly Construction for defective construction of the pond. The claims were for breach of express warranty and breach of the implied warranties of good workmanship and fitness for a particular purpose. The trial court rejected all of those claims.&#160; Bachelder appealed.</p>
<p>The court first considered Bachelder’s contention that Reilly expressly warranted that the pond would hold water. Iowa law recognizes that an express warranty may form the basis for recovery in a construction contract, even an oral construction contract. An express warranty can be created without using the words “warranty” or “guaranty.” A plaintiff alleging an express warranty must show that the contractor made some distinct assertion of quality that would be relied on by the plaintiff. It has to be more than a mere statement of opinion. An express warranty is created by any affirmation of fact or promise made by the seller to the buyer that relates to the goods and becomes part of the basis of the bargain.</p>
<p>The court determined that when Reilly agreed to construct a pond on Bachelder’s property, he was expressly warranting the pond would hold water. Bachelder reasonably understood Reilly’s agreement to move forward with the pond project as incorporating an affirmation that the finished product would indeed hold water. The fact that the designated location on Bachelder’s land was not a suitable place for a pond constituted a breach of Reilly’s warranty that he could build a pond at that site.</p>
<p>Turning to the implied warranty claims, the court noted that Iowa follows the judicial doctrine of implied warranties when reviewing agreements between a builder and a consumer. Iowa has long recognized in construction contracts an implied warranty that a building will be erected in a reasonably good and workmanlike manner and that it will be reasonably fit for the intended purpose. A good and workmanlike job is one that is done as a skilled builder or contractor should do it.</p>
<p>When a construction contract does not specify the manner in which the work is to be done, Iowa courts will imply the builder has agreed to perform in a workmanlike manner. An agreement to do work in a good and workmanlike manner has been interpreted to mean undertaking to produce definite and certain results. Thus a contractor undertakes not simply to do a good job of but to have the results of the labor operate with reasonable success in accomplishing its purposes.</p>
<p>Reilly’s lack of due care was not in the construction of the dam but in the approval of the site selected for the pond. The trial evidence demonstrated that the subsurface conditions at the site were unfavorable for ponding.&#160; A skilled workman with Reilly’s experience in digging ponds may not avoid the implied warranty of workmanlike construction by pointing to the soundness of the dam. Reilly’s miscalculation in not checking the soil conditions before digging, and thereby being unable to achieve the result of a pond that would hold water, constituted a breach of the implied warranty of workmanlike construction.</p>
<p>The court also found that Reilly breached the implied warranty of fitness for a particular purpose. Under that theory, when a contractor agrees to build a structure to be used for a particular purpose, there is an implied agreement that the structure when completed will be serviceable for the purpose intended. Three elements must be proved to succeed on this claim: (1) the builder must have reason to know the consumer’s particular purpose; (2) the builder must have reason to know the consumer is relying on the builder's skill or judgment to furnish appropriate services; and (3) the consumer must, in fact, rely upon the builder’s skill or judgment. The court ruled that Bachelder had proved all three elements of a claim for breach of implied warranty of fitness for a particular purpose.</p>
<p>Please feel free to contact us if you need the assistance of a <a title="Construction Defect Law" href="/practice-areas/construction-defect-law">Des Moines construction lawyer</a>.</p>Wed, 01 Apr 2015 06:00:00 +0000http://erbelaw.com/blog/posts/iowa-court-of-appeals-says-pond-builders-can-be-sued-for-defective-construction
Have You Ever Seen The Rain? Iowa Supreme Court Discusses "Rain Exclusion" In Property Insurance Policy<p><img data-rel="225x255" alt="Insurance 290x230" title="Insurance 290x230" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMTMvNDgvMzg0L2luc3VyYW5jZV8yOTB4MjMwLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/insurance-290x230.jpg" width="225" height="179" /></p>
<p>When John Fogerty wrote the lyrics "I wanna know, have you ever seen the rain?"&#160; he omitted the follow-up questions that the Iowa Supreme Court asked in the March 20, 2015 decision of <em>Amish Connection, Inc. v. State Farm Fire &amp; Casualty Co.</em>: If you did see the rain, did it get inside your house or building and cause property damage? And if that happened, does your property insurance cover the loss?</p>
<p>In <em>Amish Connection</em> the issue was whether a business insurance policy covered water damage inside a building that resulted when a corroded interior drainpipe burst during a rainstorm. The pipe carried rainwater from the roof to a storm sewer. Amish Connections's policy only insured damage “caused by rain” if an insured event first ruptured the roof or exterior walls to allow the rain to enter or if the damage resulted from melting ice or snow.&#160; </p>
<p><em>Amish Connection </em>was the Iowa Supreme Court's first opportunity to review a coverage claims under a rain limitation in an insurance policy. The facts were undisputed as to the source of the water damage—a corroded interior drainpipe burst during a rainstorm, flooding the rooms inside with rainwater. The fighting issue was whether the damage was “caused by rain” within the meaning of the limitations of coverage that excluded coverage for rainwater damage in certain circumstances.</p>
<p>The court had no difficulty concluding that the rain exclusion foreclosed Amish Connections's claim. The policy's rain limitation clearly stated that subject to two exceptions State Farm “will not pay for loss . . . to the interior of any building . . . or the property inside . . . caused by rain.” The first exception allowed coverage if “the building . . . first sustains damage by an insured loss to its roof or walls through which the rain . . . enters.” The second exception to the rain limitation provision allowed coverage if “the loss is caused by thawing of snow, sleet or ice on the building or structure.” Neither exception applied in Amish Connections's situation.</p>
<p>Amish Connections, realizing that the rain damage exclusion would be problematic, offered a clever argument that the water damage to its business space was not “caused by rain” within the meaning of the insurance policy's rain exclusion. It contended that the water escaping the ruptured drainpipe was no longer “rain” but rather “rainwater.” But the court noted that “rainwater” is “caused by rain." Thus water damage is “caused by rain” within the meaning of a rain damage limitation when an interior drainpipe fails during a rainstorm and releases rainwater inside a building.</p>
<p>The court buttressed the State Farm policy's plain language with a broader argument about the purpose of insurance. The interior pipe burst because it had was corroded and had not been maintained. The force of the rainwater coming through the pipe did not cause it to burst. State Farm argued that its commercial property insurance policy is not intended to provide coverage for damage resulting from deferred maintenance. The court was concerned that, if coverage for Amish Connections's loss was found to exist, State Farm would become the insurer of all water damage to property caused by inadequate or delayed maintenance. That is not a risk that any insurer would agree to assume unless the insurance policy clearly stated to the contrary.</p>
<p>Please feel free to contact us if you need the assistance of a <a title="Insurance Law" href="/practice-areas/insurance-law">Des Moines insurance lawyer</a>.</p>Wed, 25 Mar 2015 06:00:00 +0000http://erbelaw.com/blog/posts/have-you-ever-seen-the-rain-iowa-supreme-court-discusses-rain-exclusion-in-property-insurance-policy
Nursing Home Residents And The Danger Of Burns<p><img data-rel="225x255" alt="Elderly Couple" title="Elderly Couple" src="/system/images/W1siZiIsIjIwMTQvMTIvMTYvMDUvMDkvMzkvMzA4L0VsZGVybHlfQ291cGxlLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/Elderly-Couple.jpg" width="225" height="178" /></p>
<p>When people think about <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">personal injuries or wrongful death</a> regarding nursing homes, falls, malnutrition, medication errors, choking, and abuse by staff and other residents come to mind. But burns are also a significant issue for nursing home residents. A nursing home facility's duty to protect its residents includes an obligation to prevent injuries or death caused by burning.</p>
<p>According to federal studies, fires occur at hundreds of nursing homes every year. Luckily, most of those fires are minor and are extinguished before anyone is hurt or killed. Also fortunate is the fact that fire prevention, suppression, and evacuation techniques have become better as time goes on. Most of the deadliest fires at nursing facilities occurred before 1982.&#160; </p>
<p>Nursing homes should have adequate fire prevention, suppression, alarms, and evacuation plans in place in the event a fire does occur. That is especially important in a nursing home where the residents may have reduced hearing, eyesight, or mobility or may be restrained in some manner. That can make it difficult or impossible for residents to hear any alarms or safely evacuate. And, when nursing home residents are able to safely evacuate the facility, it needs to have available protection from the elements so that residents don't face further risks once outdoors. </p>
<p>Although many different events can cause a fire, a few common causes are seen in the literature regarding burns in nursing homes:&#160; </p>
<ul><li>Smoking accidents – Many nursing home facilities allow their residents to smoke inside the buildings. Obviously, that increases risk of a fire. Information compiled by the U.S. Fire Administration, which is part of the Federal Emergency Management Agency, indicates that smoking is the most frequent&#160; cause of fire fatalities among the elderly is smoking. No federal regulation bans smoking in nursing facilities. Nursing homes that allow smoking or fail to enforce smoking prohibitions create a greater danger for their patients and residents. </li>
<li>Candles – Burning candles that are left unattended or aren't watched can cause a fire. Nursing home residents may light a candle and then fall asleep because of their medication or simply because they're tired. Or they may forget to extinguish the candle when they leave their room or living quarters.</li>
<li>Flammable medical hazards – Pressurized oxygen is very dangerous because of its flammability. But it's also used for medical reasons by many nursing home residents. That increases the risk for large fires at the facility. So do the electrical equipment and flammable gases found all over a nursing facility.</li>
</ul>
<p>Serious burns from fire are not the only burn risks for nursing home residents. Burns from hot surfaces and substances can also be very dangerous. Elderly adults are much more likely to die from a surface burn than a younger person. Suffering serious burns may be extremely dangerous for older residents. In older adults, the mortality and morbidity rate from a surface burn is much higher. It is thus crucial that nursing home facilities protect residents against the risks of surface burns, including those cause by heating elements, scalding hot water, and cooking equipment.</p>
<p>Please feel free to contact us if you need the assistance of a <a title="Nursing Home Injuries" href="/practice-areas/nursing-home-injuries">Des Moines nursing home injury lawyer</a>.</p>Wed, 18 Mar 2015 06:00:00 +0000http://erbelaw.com/blog/posts/nursing-home-residents-and-the-danger-of-burns
Iowa Court Of Appeals Issues Rare Decision Regarding Illegal Wage Deductions<p><img data-rel="225x255" alt="Bigstockphoto Trucks And Warehouse 1129204" title="Bigstockphoto Trucks And Warehouse 1129204" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvNTQvMTYvOTI3L2JpZ3N0b2NrcGhvdG9fVHJ1Y2tzX0FuZF9XYXJlaG91c2VfMTEyOTIwNC5qcGciXSxbInAiLCJ0aHVtYiIsIjIyNXgyNTU%2BIl0sWyJwIiwic3RyaXAiXV0/bigstockphoto_Trucks_And_Warehouse_1129204.jpg" width="225" height="150" /></p>
<p>On March 11, 2015, the Iowa Court of Appeals issued a decision that affects our practice as <a title="Iowa Wage Law" href="/practice-areas/employment-labor-law/iowa-wage-law">Des Moines wage lawyers</a>. The case concerned two primary issues. First, whether the plaintiff was an independent contractor who was not protected by Iowa's wage law, Iowa Code 91A. Second, whether some of the employer's deductions from the employee's wages were illegal.&#160; </p>
<p>The plaintiff, Rifet Mujkic, was a commercial truck driver. The defendant, Lynx, Inc., was a trucking company. Mujkic began his involvement with Lynx as a "company driver." Mujkic later financed his own truck and became an "owner/operator" of his own truck while still hauling for Lynx.&#160; </p>
<p>An illegal wage deduction issue arose because Lynx deducted $100 from each paycheck (up to a total of $1000) of its company drivers, which was paid into an escrow account. The escrow account was used to cover insurance deductibles for accidents caused by Lynx drivers. At the end of the driver’s employment, if the escrow money was not used, the driver received the money back.&#160; In other words, Lynx used these payments into escrow as a mandatory “savings account” for its drivers.</p>
<p>Mujkic sued Lynx for violations of Iowa Code 91A after he quit his employment. One of his allegations was that the forced escrow deposits were illegal wage deductions in violation of Iowa Code 91A.5(1). The trial court denied that claim. Mujkic appealed.</p>
<p>The court of appeals first had to determine whether Mujkic was even covered under Iowa Code 91A. That chapter only applies to employees, not independent contractors. Independent contractors have no protection under Iowa Code 91A and its illegal deduction section.</p>
<p>The court of appeals decided that, during the first part of Mujkic's relationship with Lynx when he served as a company driver, Mujkic was indeed an employee and covered by Iowa Code 91A. In reaching that decision, the court of appeals noted that Lynx furnished the truck. Lynx furnished the necessary supplies and materials for Mujkic to accomplish his work. Lynx was responsible for all Mujkic’s employment and over-the-road expenses, including expenses such as fuel, truck repairs, insurance, and registration. Although Mujkic had some say on his routes, hours, and manner in which to drive, he was expected to do what he was told by Lynx.&#160; Mujkic’s work, driving trucks, was a part of the regular business of Lynx, a trucking company. Together, those facts established that Mujkic was an employee, not an independent contractor, of Lynx during his time as a company driver.&#160;</p>
<p>The court of appeals reached the opposite conclusion and decided that Mujkic was an independent contract during the time that he financed his own truck and served as an owner/operator. In cases presenting a choice between categorizing a person as an employee or an independent contractor, the primary focus is on the extent of control by the employer over the details of the alleged employee’s work. Factors relevant to that analysis include: (1) who had the right to control the physical conduct of the work; (2) whether the purported employee was on the employer’s payroll; (3) the method of payment, whether by time or by job; (4) who provided the equipment to accomplish the work; (5) the individual’s obligation to furnish necessary tools, supplies, and materials; (6) the existence of a contract for the performance of a certain kind of work at a fixed price; (7) the independent nature of the individual’s business; (8) the individual’s employment of assistants, with the right to supervise their activities; (9) the time for which the individual is employed; (10) whether the work is part of the regular business of the employer; (11) the intent of the parties; and (12) the right to control the progress of the work, except as to final results.</p>
<p>The court observed that, as an owner/operator, Mujkic had much more control over his business than he did as a company driver for Lynx.&#160; As an owner/operator, Mujkic earned compensation “per load.” From the broker’s payment, Lynx deducted a ten-percent negotiation fee for scheduling loads with the broker, T-Check advances, cargo insurance, trailer rent, and escrow. Mujkic was paid the balance. Mujkic supplied his own truck. He controlled the day-to-day use of, and was responsible for every aspect of the vehicle. As an owner/operator, Mujkic was responsible for all expenses associated with being a registered driver and completing the jobs, such as liability insurance, fuel, tolls, truck repairs, and truck registration. Mujkic controlled the physical conduct of his work. He decided which loads he would take and which loads he would refuse. He decided what hours he would work. He decided the routes he took. He decided the manner in which he drove. Mujkic purchased a truck and took a tax deduction based on the truck’s depreciation in value on his 2012 tax return.&#160; Mujkic represented himself as an owner/operator and as independent business owner on his tax return. All of that was sufficient to prove that Mujkic was an independent contract and not protected by Iowa Code 91A during his time as an owner/operator driving for Lynx.</p>
<p>That then left the question of whether the forced escrow deposits during Mujkic's time as an employee for Lynx were illegal. The court of appeals held that they were. Iowa Code section 91A.5 provides: "1. An employer shall not withhold or divert any portion of an employee’s wages unless: a. The employer is required or permitted to do so by state or federal law or by order of a court of competent jurisdiction; or b. The employer has written authorization from the employee to so deduct for any lawful purpose accruing to the benefit of the employee." &#160; </p>
<p>The escrow payments that Lynx forced from Mujkic came from wages that Mujkic was owed. Therefore,&#160;Lynx’s action in withholding escrow payments from Mujkic’s wages without written authorization from Mujkic constituted a violation of chapter 91A. Further, the deductions were not for Mujkic's benefit. The deductions were withheld to reimburse Lynx for any property damage occurring to the Lynx’s vehicle.&#160;</p>
<p>Please feel free to contact us if you need the assistance of a <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">Des Moines employment lawyer</a>.</p>Wed, 11 Mar 2015 20:50:00 +0000http://erbelaw.com/blog/posts/iowa-court-of-appeals-issues-rare-decision-regarding-illegal-wage-deductions
Employers Cannot Escape Overtime Liability By Telling Employees To Underreport Their Hours<p><img data-rel="225x255" alt="Clock" title="Clock" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDUvMTAvNTkvODg1L2Nsb2NrLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/clock.jpg" width="225" height="207" /></p>
<p>To us as <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">Des Moines employment lawyers</a>, this might seem like a no-brainer, unless you're an employer trying to dodge overtime liability, but employers can't avoid overtime liability simply by telling employees to underreport their hours worked and then rely on employees' compliance with that directive to defeat an overtime lawsuit. But, amazingly, an employer made exactly that argument in the recent case of <em>Bailey v. Titlemax of Georgia, Inc. </em>At the direction of his supervisor, who told him that TitleMax did not pay overtime, the employee regularly worked off the clock. The same supervisor also edited the employee's time records to report fewer hours than he worked. The employee later sued for the unpaid overtime.</p>
<p>During the lawsuit the employer argued that the employee was to blame for any overtime pay deficiencies. The employer maintained that the employee could have complained about his supervisor. Nor, according to the employer, did the employee follow the employer's policies regarding accurate recording of working time. The court framed the question as "if an employer knew its employee underreported his hours, can it still assert equitable defenses based on the employee's own conduct in underreporting as a total bar to the employee's FLSA claim?"&#160; </p>
<p>The court said, no, when an employer knows or has reason to know that its employee is underreporting hours worked, the employer cannot use the employee's underreporting as a defense to the employee's overtime claim.&#160; The court noted that to rule otherwise would allow an employer to wield its superior bargaining power to pressure or even compel its employees to underreport their work hours. That would neutralize the FLSA's purpose of leveling the playing field between employers and employees. It would also undermine federal overtime law's deterrent purpose.</p>
<p>We've seen variations of this argument before as <a title="Overtime Law" href="/practice-areas/overtime-law">Des Moines overtime lawyers</a>. An employer will have a written policy requiring accurate recording of all hours worked. The employer will also have an unwritten policy, verbally disseminated and enforced by mid-level management, that overtime is not allowed and any hours over forty should either not be recorded or should be edited from employees' working time submissions. Upon presentation of the overtime lawsuit, the employer will point to its written policy requiring accurate recording of all hours worked and will disavow and/or deny any verbal contradictions of that policy by middle management, claiming that the employee's recorded hours are presumed accurate and demonstrate that the employee didn't work any overtime. That argument usually fails. &#160;&#160; </p>
<p>The decision in <em>Bailey </em>(and what we've seen in our own cases) is not surprising. It was based on standard overtime law rules. An employer's policy requiring accurate reporting of working hours does not necessarily immunize the employer from overtime liability if the employer, through its management personnel, encouraged employees to violate that policy and not record all hours worked. A supervisors' knowledge that an employee is not reporting all hours work is automatically presumed to be the employer's knowledge of that fact. That is all that is required for overtime liability. An employer cannot avoid that liability by pointing to an employee's underreporting of hours worked when that underreporting occurred at the employer's insistence.&#160; &#160;&#160; &#160; </p>
<p>This is not to say that there are no possible situations in which employees underreport their hours and kill their overtime claim as a result. If an employee underreports hours worked, but not at the employer's direction and without the employer's knowledge, that employee could very well later be barred from seeking overtime compensation. That's simply an outgrowth of the basic law that it has to be proved that an employer knew or should have known about the overtime hours before the employer is liable for paying overtime. </p>Wed, 04 Mar 2015 15:22:00 +0000http://erbelaw.com/blog/posts/employers-cannot-escape-overtime-liability-by-telling-employees-to-underreport-their-hours
Reduced Schedules And Intermittent Leave Under The Family And Medical Leave Act<p><img data-rel="225x255" alt="Financial Stress" title="Financial Stress" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMDMvMDYvNjk4L2ZpbmFuY2lhbF9zdHJlc3MuanBnIl0sWyJwIiwidGh1bWIiLCIyMjV4MjU1PiJdLFsicCIsInN0cmlwIl1d/financial-stress.jpg" width="225" height="169" /></p>
<p>As <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">Des Moines employment lawyers</a> and Des Moines FMLA lawyers, we receive many calls concerning issues under the Family and Medical Leave Act. The most common type of claim, termination related to an FMLA absence, also implicates our practice as <a title="Wrongful Termination Law" href="/practice-areas/employment-labor-law/wrongful-termination-law">Des Moines wrongful termination lawyers</a>. But we occasionally also hear about employers who are engaging in other types of FMLA interference.&#160;</p>
<p>One form of FMLA employer interference involves an employee’s right to FMLA leave in the form of a reduced schedule or intermittent absences. Those FMLA options contemplate a temporary change to the employee’s regular work schedule to address the employee’s own medically-certified serious health condition or a medically-certified need to care for a covered relative who has medically-certified serious health condition. Employers and employees tend to not be as familiar with those FMLA rights as they are with the right to standard full-time FMLA leave. FMLA confusion can arise when employers and employees are not familiar with the key aspects of reduced scheduled or intermittent leave under the FMLA. </p>
<p>First, unlike full-time FMLA leave, intermittent FMLA absences or a reduced schedule are not available when the sole reason for such a request is the birth or adoption of the employee’s child. Those options may be available if necessary to recover from pregnancy complications or to care for a newborn child with a serious health condition. So be aware of that distinction when applying for relief under the FMLA.</p>
<p>Second, the same notice and medical certification requirements apply to intermittent leave or reduced schedules under the FMLA as to standard full-time FMLA leave. We summarize employee requirements for FMLA leave notices on our Family and Medical Leave Act webpage. Also, please note that for “caregiver leave” (leave to care for a family member), there must be appropriate medical certification not only of the other person’s serious health condition, but also of the necessity of the employee’s reduced schedule or intermittent absences to provide care.</p>
<p>Finally, unlike full-time FMLA leave, the terms of a reduced schedule or intermittent leave are subject to negotiation and agreement between the employee and the employer. That’s because a reduced schedule or intermittent leave doesn’t offer the same stark here-or-not-here delineation that you have with full-time leave. Because an employee on a reduced schedule or intermittent leave is still working, just not as much, a reasonable effort must be made to avoid undue disruption of the employer’s business. To avoid disruption, it may be reasonable for the employer to instruct the employee to transfer to another position with equivalent pay and benefits during the time that the employee will be on a reduced schedule or eligible for intermittent FMLA leave if that better accommodates the reduced schedule or recurring leave than the employee’s regular position.</p>
<p>Like all aspects of the FMLA, situations involving a reduced schedule or intermittent leave work out best when everyone involved engages in good communication about the employee’s situation. Employees need to be clear with their employers about their situation, employers need to be clear with their employees about what they need and what they’ll be able to do for the employee, and the medical providers who submit FMLA healthcare certifications need to submit comprehensive forms that are actually helpful and informative to the employee and employer. The origins of many of our FMLA cases can be traced back to a breakdown in that FMLA triad.</p>
<p>Please feel free to contact us if you need the assistance of a <a title="Family And Medical Leave Act (FMLA) Law" href="/practice-areas/employment-labor-law/family-and-medical-leave-act-fmla-law">Des Moines FMLA lawyer</a>.</p>Wed, 25 Feb 2015 17:35:00 +0000http://erbelaw.com/blog/posts/reduced-schedules-and-intermittent-leave-under-the-family-and-medical-leave-act
The Danger Lies Within -- Attacks On Nursing Home Residents By Other Residents<p><img data-rel="225x255" alt="Elderly Couple" title="Elderly Couple" src="/system/images/W1siZiIsIjIwMTQvMTIvMTYvMDUvMDkvMzkvMzA4L0VsZGVybHlfQ291cGxlLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/Elderly-Couple.jpg" width="225" height="178" /></p>
<p>Aggressive nursing home residents may create a risk for others at the facility. Injuries to nursing home residents by other residents is increasingly being recognized as a significant problem. According to a five-year study by Weill Cornell Medical College and Cornell University revealed in 2014, nearly 20% of nursing home residents followed in the study had at least one negative and aggressive encounter with fellow residents. Those encounters involved verbal abuse, invasion of privacy, and, worst of all, physical abuse and inappropriate sexual behavior. </p>
<p>The Cornell study was, amazingly, the first of its kind. Although elder abuse and nursing home issues have received greater attention over the past few decades, abuse by family members or nursing home staff have generally been the focus of concern. Attacks by other nursing home residents have only recently risen in concern. According to the Cornell study’s co-author, “[t]he findings suggest that these altercations are widespread and common in everyday nursing home life. Despite the acute urgency of the problem, resident-to-resident mistreatment is under-reported. Increased awareness and the adoption of effective interventions are greatly needed.” </p>
<p>In addition to the other precautions noted on our nursing home law webpage and in previous blog posts, nursing homes have an obligation to protect their patients from attacks by other residents. That is part of a nursing home facility’s general responsibility to protect its patients from harm. Nursing homes must have proper staffing and procedures in place to ensure that their residents don’t become dangers to one another. Failure to do so can expose the facility to liability for a patient’s <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">personal injuries or wrongful death</a>. </p>
<p>Nursing home residents have numerous rights and protections under state and federal law. The nursing facility should give them a copy of those rights upon admission. Those rights include the right to be free from physical, mental, and emotional abuse. That includes mistreatment by other residents. If another resident is known to be aggressive and act violently manners, the nursing facility has a duty to separate that person from other residents for everyone’s safety and protection.</p>
<p>Sadly, dangerous nursing home residents are rarely to blame for their actions. Aggressiveness and irritability are common symptoms of dementia, Alzheimer’s, and other types of cognitive disorders. Many elderly residents do not comprehend what they’re doing or that they are a threat to others. That’s why the nursing home facility is to blame, both for not taking precautions regarding residents who aren’t able to control themselves and for not protecting those residents who are unable to protect themselves.</p>
<p>Nursing homes need to adopt appropriate procedures for evaluating and monitoring residents for signs that a resident is becoming violent or aggressive. Those evaluations need to begin before the resident is even admitted to the facility. For residents that may pose a threat, nursing homes should develop a patient-specific plan for avoiding and, if necessary, addressing episodes of aggression before they reach the point of endangering the resident or others. Nursing home facilities also must have sufficient staffing to ensure that the plans for potential violent residents can be fully executed. Otherwise, the patient’s plan serves little purpose. </p>
<p>Please feel free to contact us if you need the assistance of a <a title="Nursing Home Injuries" href="/practice-areas/nursing-home-injuries">Des Moines nursing home injury lawyer</a>.</p>Wed, 18 Feb 2015 06:00:00 +0000http://erbelaw.com/blog/posts/the-danger-lies-within-attacks-on-nursing-home-residents-by-other-residents
When Is It Legal For Employers To Require Employees On FMLA To Stay In Contact With Work? <p><img data-rel="225x255" alt="021749 Doctor Gp Medical Hospital Stethoscope Generic" title="021749 Doctor Gp Medical Hospital Stethoscope Generic" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDMvNTUvNTkvOTY3LzAyMTc0OV9kb2N0b3JfZ3BfbWVkaWNhbF9ob3NwaXRhbF9zdGV0aG9zY29wZV9nZW5lcmljLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/021749-doctor-gp-medical-hospital-stethoscope-generic.jpg" width="225" height="127" /></p>
<p>As <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">Des Moines employment lawyers</a> we frequently receive calls regarding the nuances of the Family and Medical Leave Act. The FMLA’s basics are well-understood by employees and employers, but the devil can be in the details when trying to navigate a complex federal law like the FMLA, with its many statutory sections, interpretive regulations, and cases. From an employee’s perspective, misjudgment about the extent of employees’ FMLA rights can lead to bad decisions that cause worse employment results, including the loss of a job. </p>
<p>One type of case we’ve seen actually begins as a <a title="Wrongful Termination Law" href="/practice-areas/employment-labor-law/wrongful-termination-law">Des Moines wrongful termination law</a> question but is really an FMLA matter. An employee goes on an FMLA absence, is asked to do work for the employer while on FMLA, refuses to do so, and is fired as a result. FMLA violation, yes or no? Let’s look at that question in more detail. </p>
<p>The FMLA entitles qualifying employees to take up to twelve weeks unpaid leave, without fear of termination, when the leave is taken for a serious health condition. The FMLA prohibits employers from interfering with, restraining, or denying the exercise of a right under the FMLA. To prevail on an FMLA interference claim, employees must prove that: (1) they’re an eligible employee under the FMLA; (2) their employer is an FMLA-qualifying employer; (3) they were entitled to leave under the FMLA; (4) they gave the employer notice of their intention to take FMLA-protected leave; and (5) the employer denied the FMLA benefits to which the employee was entitled.</p>
<p>Employers can interfere with an employee’s FMLA rights even if they approve the leave. A common occurrence is when an employee requires an employee to stay in contact with the workplace while on an FMLA absence. That can lead to the question of whether the employer is interfering with the employee’s leave by requiring the employee to work while on leave. That’s a murky area in which several courts over the past few years have issued decisions that try to delineate between permissible contact with employees out on an FMLA absence and contact that crosses the line into making the employee work while on leave, thus “interfering” with the leave. </p>
<p>This issue has to be decided on a case-by-case basis. Here are the general principles that courts usually follow when deciding whether employer contact with an employee on an FMLA absence has gone too far: The ability to take FMLA leave is not conditioned upon the willingness of the employee to remain “on call” to the employer. Asking an employee to perform work-related tasks while on FMLA leave is generally determined to be interference with the employee’s FMLA rights. But fielding occasional calls about one’s job while on leave is a professional courtesy that does not abrogate or interfere with the exercise of an employee’s FMLA rights. When such contact is limited to the scope of passing on institutional knowledge to new staff, or providing closure on completed assignments, employers do not violate the FMLA by making such calls. As you can see, this is a very fine line that’s easy for employers to accidentally cross because it’s not always clear exactly where the line is. </p>
<p>So what are examples of employer contacts with absent employees that don’t constitute FMLA interference? Courts have not had an issue with minor contacts, such as providing computer passwords, helping locate files, updating the status of work assignments at the time that the leave began, or assisting with scheduling and logistics for employees who will be covering the absent employees. What’s not okay? Examples from the cases include requiring an employee to complete certain training before returning to work, complete employee evaluations of subordinates, perform data entry, and in general perform any of the functions of the job that the employee to take medical leave.</p>
<p>Please feel free to contact us if you need the assistance of a <a title="Family And Medical Leave Act (FMLA) Law" href="/practice-areas/employment-labor-law/family-and-medical-leave-act-fmla-law">Des Moines Family and Medical Leave Act lawyer</a>.</p>Wed, 11 Feb 2015 06:00:00 +0000http://erbelaw.com/blog/posts/when-is-it-legal-for-employers-to-require-employees-on-fmla-to-stay-in-contact-with-work
Medication Errors In Nursing Homes<p><img data-rel="225x255" alt="021749 Doctor Gp Medical Hospital Stethoscope Generic" title="021749 Doctor Gp Medical Hospital Stethoscope Generic" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDMvNTUvNTkvOTY3LzAyMTc0OV9kb2N0b3JfZ3BfbWVkaWNhbF9ob3NwaXRhbF9zdGV0aG9zY29wZV9nZW5lcmljLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/021749-doctor-gp-medical-hospital-stethoscope-generic.jpg" width="225" height="127" /></p>
<p>A major and very common issue in nursing home facilities is medication errors. Medication errors are mistakes that occur while nursing home staff is preparing or administering medicine. Medication errors can occur because staff violates doctor’s orders, accepted professional standards, or manufacturer’s instructions. </p>
<p>The real concern is severe medication errors. It’s difficult to completely avoid and eliminate all medication errors. But serious medication errors are a different story. Although in most cases a single improper dosage is unlikely to cause <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">personal injuries or wrongful death</a>, consistent medication errors can be very dangerous. If you believe nursing home staff is committing medication errors and endangering your loved one, it’s crucial that you speak out to ensure that proper steps be taken to avoid future medication errors.</p>
<p>So how can you determine whether a medication error has occurred? There’s no easy answer for that. It’s probably best to err on the side of caution and, when it doubt, assume that a medication error has occurred and notify the facility accordingly. These are some of the more common types of medicine errors:</p>
<ul><li><strong>Splitting medications that aren’t mean to be split</strong>: Examples include capsules, tablets, or other types of medication that specifically say things like, “Do not crush.” </li>
<li><strong>Insufficient fluid intake with the medicine</strong>: Many prescription medications require patients to consume a certain amount of fluid when ingesting the medication.&#160; Insufficient hydration or not consuming fluid when taking such medication may be dangerous to the patient. </li>
<li><strong>Insufficient or no antacids or food</strong>: While some medications must be taken with fluids, others require food. Certain medications require the patient to take something else, perhaps an antacid before taking the prescription medication.&#160; Instructions regarding antacids, fluids, and food are very important and must be followed. </li>
<li><strong>Failure to properly prepare the medication</strong>: Many medications must be shaken or mixed before they’re given to a nursing home resident. Failure to follow the correct procedures endangers patients by giving them too much or too little of the drug. </li>
<li><strong>Swallowing, instead of dissolving, sublingual tablets</strong>: Sublingual tablets are a different type of pill. They’re taken by placing them underneath the tongue, where they’re then left to dissolve. But some nursing home residents will swallow sublingual tablets instead of allowing them to dissolve.&#160; It may not be a major issue if it only happens once or twice as long as nursing home staff realizes that is has occurred and takes steps to prevent it from happening again. Prevention may include careful patient monitoring during administration of the sublingual tablets. Another possibility is changing the medication to one that the nursing home resident is better able to digest.</li>
</ul>
<p>There’s no excuse for significant medication errors in a nursing home. It’s a matter of paying attention to the details. Medication errors can happen because a staff member isn’t properly trained. Maybe the facility lacks sufficient staff members to adequately care for its residents. Another possibility could be that the facility doesn’t have appropriate policies and procedures for the administration of medication to its residents. Any of those, or a combination of them, can lead to types of medication errors described above because of omitting, underdosing, or overdosing medication, using expired medication, referring to expired or outdated medication orders, using improper time, duration, or rate of administering medication, errors with lab work, using improper administration techniques, and failure to maintain proper documentation of medications administered.</p>
<p>Please feel free to contact us if you believe you need the assistance of a <a title="Nursing Home Injuries" href="/practice-areas/nursing-home-injuries">Des Moines nursing home injury lawyer</a>.</p>Wed, 04 Feb 2015 06:00:00 +0000http://erbelaw.com/blog/posts/medication-errors-in-nursing-homes
Iowa Court Of Appeals Shoots Down Another Public Employee Whistleblower Lawsuit<p><img data-rel="225x255" alt="Financial Stress" title="Financial Stress" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMDMvMDYvNjk4L2ZpbmFuY2lhbF9zdHJlc3MuanBnIl0sWyJwIiwidGh1bWIiLCIyMjV4MjU1PiJdLFsicCIsInN0cmlwIl1d/financial-stress.jpg" width="225" height="169" /></p>
<p>In a January 14, 2015 decision important to our work as <a title="Wrongful Termination Law" href="/practice-areas/employment-labor-law/wrongful-termination-law">Des Moines wrongful termination lawyers</a>, the Iowa Court of Appeals once again rejected a public employee's attempt to recover for wrongful termination under Iowa's public employee whistleblower statute, Iowa Code 70A.29. In that case, <em>Rick Carter v. Lee County</em>, Rick Carter sued Lee County after he was fired. A jury returned a verdict for him and awarded money damages. The trial court overturned the jury's decision and entered judgment for the county instead. The appeal concerned whether the trial correctly overruled the jury and took away Carter's verdict.</p>
<p>Carter had served as the county's maintenance director. Carter maintained that the county fired him in retaliation for revealing to the public what he believed to be Lee County’s “troubling pattern of irresponsible money management” and health and safety violations." He asserted a violation of Iowa Code 70A.29. That statute provides that "[a] person shall not discharge an employee from . . . a position in employment by a political subdivision of this state as a reprisal for a disclosure of any information by that employee to . . . an official of that political subdivision . . . or for a disclosure of information to any other public official or law enforcement agency if the employee reasonably believes the information evidences a violation of law or rule, mismanagement, a gross abuse of funds, an abuse of authority, or a substantial and specific danger to public health or safety. This section does not apply if the disclosure of the information is prohibited by statute."</p>
<p>The fighting issue on appeal was whether Carter engaged in "protected activities" when he made his complaints to the Lee County Board of Supervisors. The trial court informed the jury that Carter was alleging the county terminated his employment because he had disclosed information to a public official or law enforcement agency that he reasonably believed was evidence of a violation of a law or rule, mismanagement, a gross abuse of funds, an abuse of authority, or a substantial and specific danger to public safety or health. The jury further learned that "[i]f this was the reason he was terminated it was against public policy.” To win the case, Carter had to prove, among other things, that he reported certain information to a public official or law enforcement agency and he reasonably believed the information was evidence of the county committing a violation of law or rule, mismanagement, a gross abuse of funds, an abuse of authority, or of a substantial and specific danger to public health or safety.</p>
<p>The Iowa Court of Appeals observed that Iowa Code 70A.29 requires proof the employee “reasonably believes” the information being disclosed is evidence of wrongdoing and that the statute thus considers the employee's beliefs from both a subjective and an objective standard. So while Carter’s subjective understanding and intent are relevant, the key question is whether a reasonable person in his circumstances would have believed the disclosed information revealed mismanagement, gross abuse of funds, or other comparable wrongdoing by Lee County. If Carter’s beliefs, however sincere, were objectively unreasonable, his actions were not protected activity. Both the trial court and the Court of Appeals concluded that Carter's beliefs of county wrongdoing were not objectively reasonable. That was fatal to his whistleblowing claim.</p>
<p>Another issue the court had with Carter's whistleblowing claim was that he seemed to be disclosing information that the Lee County Board of Supervisors was already aware of. The whistleblower provision required Carter to prove his discharge from employment was in reprisal for his disclosure of information either to public officials or to a law enforcement agency that he reasonably believed to be evidence of wrongdoing by the county. The common meaning of “disclose” is “to expose to view, as by removing a cover; uncover” or “to make known, divulge.” Because Carter’s complaints were familiar to the supervisors and the sheriff before Carter aired them at the public meetings, Carter failed to prove he exposed adverse information within the meaning of the whistleblower statute. The only thing Carter was doing was making his views and disagreements with the Board known to the public. The legislature did not include the public in the list of entities to whom wrongdoing may be reported to obtain whistleblower protection.</p>
<p>Please feel free to contact us if you need the assistance of a <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">Des Moines employment lawyer</a>.</p>Wed, 28 Jan 2015 06:00:00 +0000http://erbelaw.com/blog/posts/iowa-court-of-appeals-shoots-down-another-public-employee-whistleblower-lawsuit
Iowa Court Of Appeals Issues Warning About Insurance Coverage For Flood Events<p><img data-rel="225x255" alt="Insurance 290x230" title="Insurance 290x230" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMTMvNDgvMzg0L2luc3VyYW5jZV8yOTB4MjMwLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/insurance-290x230.jpg" width="225" height="179" />
</p>
<p>The Iowa Court of Appeals recently gave a stark reminder of the limits of insurance policies when it comes to floods. In the case, <em>Mt. Zion Missionary Baptist Church v. Church Mutual Insurance Co.</em>,Mt. Zion sought coverage from its insurer, Church Mutual, for damage sustained during a flood. The insurer denied the claim. Zion then sued Church Mutual for breach of the insurance contract. The trial court rejected Zion's claim because of the policy's exclusion for flood damage.</p>
<p>Zion had property insurance on its church building, but not flood insurance, through its Church Mutual. In 2008, the Cedar River overflowed its banks and inundated Cedar Rapids. Several hours before the surface waters reached the church, the sewer backed up into the church basement. Zion then sought coverage for the damage caused by the sewer backup.</p>
<p>Zion's problem was that the Church Mutual explicitly excluded coverage for flood damage or sewer backups caused by a flood. The applicable coverage exclusion foreclosed coverage for "[f]lood, surface water, waves, tides, tidal waves, overflow of any body of water, or their spray, all whether driven by wind or not. . . ." The church may have had sewer backup coverage, but "only if caused by an event away from the described buildings and when the damage is not caused by flood, surface water, waves, tides, tidal waves, overflow of any body of water, or their spray, all whether driven by wind or not." So the trial court ruled against Zion because the sewer backup was caused by a flood.</p>
<p>The Iowa Court of Appeals spent little time dismissing the church's arguments on appeal. Quoting from an earlier case that also involved a Church Mutual policy, the court noted that "[t]he policy language is clear that water or sewage back up that enters the property due to an event away from the covered property is not covered if the water or sewage back up was caused by flood, surface water, or the overflow of any body of water. The policy language cannot be reasonably read in any other way. The provision of the policy pertaining to sewer back up coverage simply reinforces that coverage is not provided for damage resulting from flood, surface water, or overflow of any body of water that enters the building through foundations, walls, floors, windows, cracks, roofs, or through other opening of the building." </p>
<p>Zion tried to escape the flood exclusion by arguing that its "reasonable expectations" were frustrated by the Church Mutual’s decision to deny coverage for the sewer backup damages. The "reasonable expectations doctrine" can only be invoked when an exclusion (1) is bizarre or oppressive; (2) eviscerates terms explicitly agreed to; or (3) eliminates the dominant purpose of the transaction. The reasonable expectations is sometimes, but rarely, used to allow policyholders to avoid the insurance policy's plain language. But the court decided that the reasonable expectations doctrine was inapplicable to Zion's sewer backup claim.</p>
<p><em>Mt. Zion </em>is really a straightforward, uncomplicated insurance contract/policy case. The starting point in insurance dispute cases is to look at the policy's actual language. Unless that language is ambiguous, courts generally look no farther in determining whether there's insurance coverage for a certain event. Only if the policy's language is ambiguous and subject to more than one interpretation will a court engage in a deeper analysis. And only in rare instances will a court ignore the policy's language through application of the reasonable expectations doctrine. In short, the language of your insurance policy will probably govern. You're presumed to have read that policy, so it's always best to do so, familiarize yourself with the policy's coverages, exclusions, and other terms and conditions, and modify your coverage or buy additional coverage if necessary.</p>
<p>Please feel free to contact us if you need the assistance of a <a title="Insurance Law" href="/practice-areas/insurance-law">Des Moines insurance lawyer</a>.<br />
</p>Wed, 21 Jan 2015 06:00:00 +0000http://erbelaw.com/blog/posts/iowa-court-of-appeals-issues-warning-about-insurance-coverage-for-flood-events
Iowa Court Of Appeals Emphasizes Limits Of Harassment/Hostile Work Environment Cases<p><img data-rel="225x255" alt="Financial Stress" title="Financial Stress" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMDMvMDYvNjk4L2ZpbmFuY2lhbF9zdHJlc3MuanBnIl0sWyJwIiwidGh1bWIiLCIyMjV4MjU1PiJdLFsicCIsInN0cmlwIl1d/financial-stress.jpg" width="225" height="169" /></p>
<p>A recent Iowa Court of Appeals decision, <em>Tammy Marie Roche v. Davenport Cleaners, Inc.</em>, demonstrates the hurdles that a plaintiff must navigate in <a title="Unlawful Harassment And Hostile Work Environment" href="/practice-areas/employment-labor-law/unlawful-harassment-and-hostile-work-environment">workplace harassment and hostile work environment</a> claims. The employees in the <em>Roche </em>case had an on-again, off-again romantic relationship. Everything was fine when they were together. But when they were having difficulties in their relationship, the employees resorted to derogatory name-calling and even physical action against each other.&#160; </p>
<p>The plaintiff, Roche, was eventually fired after a physical altercation with the other employee during which she struck him first. She then brought a legal claim against her former employer, asserting that she's been subjected to a sexually hostile work environment and had been fired in retaliation for her complaints about that environment. After a trial the district court ruled against her on all of her claims. The trial court did so because it concluded that the harassment of Roche was not "unwelcome" because Roche invited and reciprocated the other employee's conduct. The district court also decided that the harassment was not based on a protected characteristic (sex), but was instead the result of Roche’s failed romantic relationship with the other employee. Finally, the district court found that Roche was fired for a legitimate, nondiscriminatory reason, not because she's complained about the hostile work environment.</p>
<p>Regarding whether the conduct against Roche was "unwelcome," the Iowa Court of Appeals observed that the conduct at issue must be "unwelcome" in that the plaintiff neither solicited it nor invited it and regarded the conduct as undesirable or offensive. Roche couldn't prove that the other employee's conduct was unwelcome because she reciprocated and even initiated the harassment. Since plaintiffs can't succeed with a harassment or hostile work environment claim when they participate in the conduct they're complaining about, Roche's sexual harassment claim failed on this ground.&#160; </p>
<p>As noted, there was also a question over whether the harassment was due to Roche's sex or because she was in a relationship with the other employee. This portion of the case doesn't make much sense to me. The district court ruled that the harassment was based on the failed relationship and was thus not actionable. The Court of Appeals had a little more difficulty with this part of the trial court's decision because it's not entirely accurate to say that harassment or a hostile work environment is excused merely because the victim is or was in a personal relationship with the other employee. The lesson from this case seems to be that using gender-specific derogatory words against a co-worker, which would normally create liability for harassment and a hostile work environment, is acceptable as long as the accused employee maintains that the words were simply uttered against the victim as a form of revenge for a failed relationship or something like that. The Iowa Court of Appeals said that "[w]hile it is true some of the words used by Vlahouis have female connotations, the words were spoken to Roche not because of her sex but as a result of the ending of the relationship between Roche and Vlahoulis." I'm not entirely sure that the Court of Appeals was correct on that one, and one appellate judge did file a dissenting opinion in which she noted that the nature of certain words is not changed merely because the employees were previously in a relationship. &#160; &#160; &#160;&#160; </p>
<p>Courts often have difficulty penalizing conduct that arises out of personal or consensual relationships, at least in the <a title="Employment Discrimination Law" href="/practice-areas/employment-labor-law/employment-discrimination-law">employment discrimination</a> and <a title="Wrongful Termination Law" href="/practice-areas/employment-labor-law/wrongful-termination-law">wrongful termination</a> context. Several cases have found that an employer does not engage in unlawful gender discrimination by discharging a female employee who is involved in a consensual relationship that has triggered personal jealousy. Terminating an employee based on the employee's consensual sexual conduct does not violate Title VII absent allegations that the conduct stemmed from unwelcome sexual advances or a hostile work environment. Adverse employment action stemming from a consensual workplace relationship (absent sexual harassment) is not actionable.&#160; </p>
<p>The Iowa Court of Appeals also agreed with the trial court that Roche had failed to prove her retaliation/wrongful termination claim. The employer claimed that Roche was fired because she hit the other employee first during the incident that precipitated Roche's termination. The employer denied that its decision to fire her had anything to do with her internal complaints about the other employee's conduct. The Court of Appeals determined that Roche lacked evidence to disprove the employer's stated reason for firing her and its denials that her internal complaints had anything to do with that decision.</p>
<p>Please feel free to contact us if you need the assistance of a <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">Des Moines employment lawyer</a>.</p>Wed, 14 Jan 2015 06:00:00 +0000http://erbelaw.com/blog/posts/iowa-court-of-appeals-emphasizes-limits-of-harassment-hostile-work-environment-cases
The Duty To Accept Reinstatement In Employment Termination Cases<p><img data-rel="225x255" alt="Financial Stress" title="Financial Stress" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMDMvMDYvNjk4L2ZpbmFuY2lhbF9zdHJlc3MuanBnIl0sWyJwIiwidGh1bWIiLCIyMjV4MjU1PiJdLFsicCIsInN0cmlwIl1d/financial-stress.jpg" width="225" height="169" /></p>
<p>In a previous <a target="_blank" title="http://erbe-law-firm.herokuapp.com/blog/posts/the-duty-to-mitigate-lost-wages-in-employment-termination-cases" href="http://erbe-law-firm.herokuapp.com/blog/posts/the-duty-to-mitigate-lost-wages-in-employment-termination-cases">post</a> regarding <a title="Wrongful Termination Law" href="/practice-areas/employment-labor-law/wrongful-termination-law">Des Moines wrongful termination law</a>, <a title="Employment Discrimination Law" href="/practice-areas/employment-labor-law/employment-discrimination-law">Des Moines employment discrimination law</a>, and <a title="Disability Discrimination Law" href="/practice-areas/employment-labor-law/disability-discrimination-law">Des Moines disability discrimination law</a>, I discussed the responsibility to mitigate or reduce your lost wages after your employer has unlawfully fired you. There's another aspect of mitigation of damages regarding offers of reinstatement that must also be discussed. By "reinstatement," I'm referring to situations in which your employer fires you and then offers you your job back. Your employer's offer of reinstatement will become an issue if you pursue a wrongful termination or employment discrimination claim.</p>
<p>Your employer's offer to reinstate you can impact your ability to recover lost wages. The general rule is that, absent special circumstances, an employee’s rejection of an unconditional offer of job reinstatement stops the accumulation of lost wages from the point the offer is made. This is a corollary of the idea discussed in my earlier post that fired employees cannot just wait around, doing nothing and hoping that a lawsuit will make up for all of the wages that they're missing. So if you're considering suing your employer, and it offers you your job back, you need to think carefully about whether to reject that offer.&#160; &#160; </p>
<p> Courts will usually review two factors in determining whether an offer of job reinstatement was improperly rejected, such that the employee's lost wage claim ends as of the date of the offer:</p>
<ol><li>Was the offer of reinstatement unconditional?</li>
<li>Did any "special circumstances" exist that permitted the employee to reject the reinstatement offer without repercussion? </li>
</ol>
<p>The first factor means that the reinstatement offer needs to be with no questions asked and no strings attached. The employer may not condition the reinstatement offer on the employee's dismissal of the legal claims or promise not to bring them. Nor can an employer require the employee to jump through any hoops as a condition of reinstatement. The employer needs to simply put the fired employee back where the employee was as if the termination had never happened.&#160; </p>
<p>Likewise, the employee cannot demand anything in addition to reinstatement and then claim that the employer's failure to meet the additional demands is grounds for legitimate refusal of the reinstatement offer. For example, the employee cannot demand that the employer pay money or agree to other remedies that would only be available through a lawsuit and then turn down the reinstatement offer if those demands aren't met. The employee's additional demands cannot change the nature of an unconditional offer of reinstatement. Refusal to accept the reinstatement offer under such circumstances could later be criticized by a court. &#160;&#160;</p>
<p>The second, "special circumstances" factor allows employees a way to reject even unconditional offers of reinstatement if they can establish that they had good reason for doing so. Some courts analyze the special circumstances factor in terms of reasonableness -- Why did the employee refuse the unconditional offer of reinstatement and was it reasonable for the employee to do so? Employees are cautioned to back up any such reasons with hard evidence, instead of just relying on their unsupported beliefs, opinions, fears, etc. Courts are less likely to find special circumstances justifying rejection of a reinstatement offer when the employee lacks independent evidence to support the asserted reasons for declining reinstatement.&#160;&#160;</p>
<p>These rules should also apply to cases involving hiring or promotion decisions. The difference in those cases would that, instead of offering to reinstate the employee, the employer instead offers to hire the employee for the job or give the employee the promotion that the employee sought in the first place. Otherwise, the "unconditional offer" and "special circumstances" tests should still apply.</p>
<p>Please feel free to contact us if you need the assistance of a <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">Des Moines employment lawyer</a>.</p>
Wed, 07 Jan 2015 06:00:00 +0000http://erbelaw.com/blog/posts/the-duty-to-accept-reinstatement-in-employment-termination-cases
The Duty To Mitigate Lost Wages In Employment Termination Cases<p><img data-rel="225x255" alt="Financial Stress" title="Financial Stress" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMDMvMDYvNjk4L2ZpbmFuY2lhbF9zdHJlc3MuanBnIl0sWyJwIiwidGh1bWIiLCIyMjV4MjU1PiJdLFsicCIsInN0cmlwIl1d/financial-stress.jpg" width="225" height="169" /></p>
<p>As <a title="Wrongful Termination Law" href="/practice-areas/employment-labor-law/wrongful-termination-law">Des Moines wrongful termination lawyers</a>, we often encounter the argument that our clients have not "mitigated" their damages. But what does that mean? "Mitigate" can be understood as meaning "reduce" or even "eliminate." Mitigation of damages is most commonly implicated in employment termination cases through the argument that fired employees should've reduced or eliminated their lost wages by accepting reinstatement to their former position or by finding other employment after being fired.&#160; </p>
<p>Employees have an obligation to mitigate their lost wages after being fired. That obligation applies in all types of <a title="Employment Discrimination Law" href="/practice-areas/employment-labor-law/employment-discrimination-law">employment discrimination</a> cases, including those involving race discrimination, sex discrimination, age discrimination, <a title="Disability Discrimination Law" href="/practice-areas/employment-labor-law/disability-discrimination-law">disability discrimination</a>, <a title="Family And Medical Leave Act (FMLA) Law" href="/practice-areas/employment-labor-law/family-and-medical-leave-act-fmla-law">FMLA violations</a>, and <a title="Iowa Drug And Alcohol Testing Law " href="/practice-areas/iowa-drug-and-alcohol-testing-law--2">drug and alcohol testing</a> claims. If a fired employee is determined to have failed to properly mitigate the employee's lost wages, that may reduce the amount of lost wages, emotional distress, and other damages that the employee is able to recover through a lawsuit.&#160;&#160; </p>
<p>Regarding finding substitute employment after being fired, the general idea is that terminated employees who want to sue their employer can't just sit at home, earning no money through work, and expect to be paid through the lawsuit for all that downtime. Instead, the law expects terminated employees to be out actively seeking suitable other employment after being fired. Otherwise terminated employees face the possibility of having their lost wage and related damages severely reduced at trial. &#160;&#160; </p>
<p>The emphasis is on "suitable" employment though. Terminated employees are not required to mitigate damages by just grabbing the first available job. In fact, taking a lesser job with less pay may in some circumstances be considered a failure to mitigate damages too in the sense that the employee is bot trying hard enough to make as much money as was previously made. Instead, the duty to mitigate damages requires employees to look for employment comparable in pay and responsibility to their former job. In determining whether suitable jobs were available, courts will consider factors such as the distance from the home to the place of employment, whether the job was full-time or part-time, the job's compensation and benefits, the necessary qualifications for the job, and the responsibilities of the job.</p>
<p>The issue of mitigation of lost wages through the search for substitute employment is guaranteed to arise in any employment termination case. You should therefore immediately begin compiling information pertinent to your job search. That includes all job search documents. Defense counsel will request those documents as part of your lawsuit. Your attorney may want to use your job search documents as part of proving that you did try to mitigate your damages.</p>
<p>You should also keep a current, ongoing log or computer file containing certain information about your job search efforts:</p>
<ul><li>Where you have looked for work;</li>
<li>The positions you have sought, applied for, or inquired about;</li>
<li>The name of each individual with whom you have spoken about that job;</li>
<li>Each response you received from your application;</li>
<li>Whether you were interviewed;</li>
<li>The results of the interview;</li>
<li>Whether you turned down any employment offers, and if so, why.</li>
</ul>
<p>You'll be asked to provide that information as part of your employment termination lawsuit so it's important that it be detailed and accurate.</p>
<p>Please feel free to contact us if you need the assistance of a <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">Des Moines employment lawyer</a>.</p>Wed, 31 Dec 2014 06:00:00 +0000http://erbelaw.com/blog/posts/the-duty-to-mitigate-lost-wages-in-employment-termination-cases
Nursing Home Residents And The Dangers Of Choking<p><img data-rel="225x255" alt="021749 Doctor Gp Medical Hospital Stethoscope Generic" title="021749 Doctor Gp Medical Hospital Stethoscope Generic" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDMvNTUvNTkvOTY3LzAyMTc0OV9kb2N0b3JfZ3BfbWVkaWNhbF9ob3NwaXRhbF9zdGV0aG9zY29wZV9nZW5lcmljLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/021749-doctor-gp-medical-hospital-stethoscope-generic.jpg" width="225" height="127" /></p>
<p>Many nursing home residents have difficulty swallowing food. Nursing home facilities thus need to carefully supervise and monitor such residents' food intake. Choking dangers, which can cause <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">serious injuries and even death</a>, are multiplied when the nursing home staff does not take proper care of the resident.&#160; </p>
<p>Nursing home residents choke when food or medication enter their windpipe rather than their esophagus. The person's air supply is then restricted or completely eliminated. Permanent brain damage or death can result from extended oxygen deprivation. It's thus very important that the nursing home facility have staff who are properly trained on how to avoid choking, recognize choking, and help a choking resident.</p>
<p>Disabled and elderly patients have difficulty swallowing food or medication for various reasons. The more common medical conditions that impact swallowing ability include:</p>
<ul><li>Aging – Fifty pairs of muscles and nerves are utilized in swallowing, so deterioration of the throat muscles can make it difficult for older patients to swallow.</li>
<li>Cancer – Some forms of cancer can effect a person’s ability to swallow, as can radiation treatment for cancer. </li>
<li>Neurological disorders –&#160;Parkinson’s disease, muscular dystrophy, and multiple sclerosis are all neurological disorders that may effect the ability to swallow.</li>
<li>Alzheimer’s disease – In the final stages of Alzheimer's disease, Alzheimer’s patients may have difficulty swallowing and eating.</li>
<li>Neurological damage – Severe trauma, such as brain or spinal injuries or a stroke, may reduce a person's ability to swallow.</li>
</ul>
<p>At significant risk of choking or oxygen deprivation are patients who require the use of a breathing machine or ventilator to breathe. The lives and safety of such patients is dependent on that equipment remaining fully operational and functional without interruption. The nursing facility staff caring for such patients have to remain constantly vigilant to ensure that the breathing devices are safe and working properly</p>
<p>Patients who have difficulty swallowing are commonly examined by a physician to determine the extent of the issue. The physician will often then make dietary recommendations for the patient, including what the patient should eat and in what forms. Those recommendation thus need to become part of the nursing home resident's chart so that all staff charged with caring for the resident are aware of the physician's dietary recommendations. The staff must then strictly adhere to those recommendations to ensure that the patient does not receive food that the physician has advised against, or that the physician has instructed should be received in only a certain manner to lessen the risk of choking. </p>
<p>Choking incidents can happen for a variety of reasons. Staff might not properly supervise the nursing home resident. The facility may have insufficient staff to properly care for an supervise the resident. The facility may not have properly trained its staff. Or the staff may not follow medical orders regarding the resident's diet or supervisory needs.</p>
<p>If this happens to your family, don't let the nursing facility get by with excuses. Do something about it by contacting a Des Moines nursing home injury lawyer. The nursing facility is being paid for accepting your family member as a resident and all of the responsibility that comes with that. That responsibility includes ensuring that the nursing facility's staffing levels are sufficient to allow staff members adequate time to safely work with the residents at all hours of the day. It also includes providing proper training and equipment for all staff members. </p>Wed, 24 Dec 2014 06:00:00 +0000http://erbelaw.com/blog/posts/nursing-home-residents-and-the-dangers-of-choking
U.S. Supreme Court Limits Overtime Pay For Amazon's Warehouse Employees<p><img data-rel="225x255" alt="Clock" title="Clock" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDUvMTAvNTkvODg1L2Nsb2NrLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/clock.jpg" width="225" height="207" /></p>
<p>The next time you order something from Amazon, be aware that the people who fill those orders at Amazon's warehouses may not be getting paid for all of the time they spend there. On December 9, 2014 the United States Supreme Court issued its decision in <em>Integrity Staffing Solutions, Inc. v. Busk</em>. Integrity Staffing provides warehouse staffing to Amazon. Integrity Staffing's employees retrieve products from shelves at Amazon's warehouses and package those products for delivery to Amazon customers. That decision will impact our ability as <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">Des Moines employment lawyers</a> to recover overtime compensation for our clients in certain situations. </p>
<p>This overtime case arose because Integrity Staffing required its employees to undergo an anti-theft security screening before leaving the warehouse each day. The employees weren't paid for the time spent waiting for and undergoing those security screenings. The issue in the case was whether the employees’ time spent waiting to undergo and undergoing those security screenings is compensable under federal overtime law. The U.S. Supreme Court said no.</p>
<p>The Court relied on an amendment to federal overtime law, known as the Portal-To-Portal Act, in deciding that Integrity Staffing did not have to pay its employees for the time spent in security screenings. One section of the Portal-To-Portal Act states that employers don't have to pay employees for time spent on "activities which are preliminary to or postliminary to [the employee's] principal activity or activities" and "which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities."&#160;&#160;</p>
<p>The Court noted that it has consistently interpreted the term "principal activity or activities" to embrace all activities that are an "integral and indispensable part of the principal activities." "Integral" means belonging to or making up an integral whole; constituent, component; specifically necessary to the completeness or integrity of the whole; forming an intrinsic portion or element, as distinguished from an adjunct or appendage. When used to describe a duty, “indispensable” means a duty that cannot be dispensed with, remitted, set aside, disregarded,or neglected. An activity is therefore integral and indispensable to the principal activities that an employee is employed to perform if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities. The Court further observed that the U.S. Department of Labor has interpreted the Portal-To-Portal Act in a similar manner.&#160; </p>
<p>It doesn't matter whether the employer required or benefited from the activity. The "integral and indispensable" test is tied to the productive work that the employee is employed to perform. Activities that an employer requires or benefits from but that are not connected to the work the employee performs are not "integral and indispensable" and do not need to be compensated.</p>
<p>Applying those standards, the Court concluded that the security screenings were noncompensable postliminary activities. The screenings were not the principal activity or activities that the employees were employed to perform. Integrity Staffing did not employ its workers to undergo security screenings, but to retrieve products from warehouse shelves and package those products for shipment to Amazon customers. Nor were the security screenings integral and indispensable to the employees’ duties as warehouse workers. The screenings were not an intrinsic element of retrieving products from warehouse shelves or packaging them for shipment. Integrity Staffing could have eliminated the screenings altogether without impairing the employees’ ability to complete their work.</p>
<p>Overtime cases require legal analysis of federal statutes, U.S. Department of Labor regulations, and court decisions.&#160; Please feel free to contact us if you need the assistance of a <a title="Overtime Law" href="/practice-areas/overtime-law">Des Moines overtime lawyer</a>.</p>Wed, 17 Dec 2014 06:00:00 +0000http://erbelaw.com/blog/posts/u-s-supreme-court-limits-overtime-pay-for-amazon-s-warehouse-employees
Examinations Under Oath In Insurance Cases<p><img data-rel="225x255" alt="Insurance 290x230" title="Insurance 290x230" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMTMvNDgvMzg0L2luc3VyYW5jZV8yOTB4MjMwLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/insurance-290x230.jpg" width="225" height="179" /></p>
<p>Most insurance policies give your insurer the right to demand that you submit to an "examination under oath" as part of the claims process. Whether the claim is for <a title="Private Nuisance Law" href="/practice-areas/private-nuisance-law">private nuisance</a>, <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">personal injury or wrongful death</a>, a <a title="Trucking Accidents" href="/practice-areas/car-accidents/trucking-accidents">truck accident</a>, a <a title="Drunk Driving Accidents" href="/practice-areas/car-accidents/drunk-driving-accidents">drunk driving accident</a>, a <a title="Motorcycle Accident Law" href="/practice-areas/motorcycle-accident-law">motorcycle accident</a>, a <a title="Car Accidents" href="/practice-areas/car-accidents">car accident</a>, <a title="Products Liability/Product Warranty Law" href="/practice-areas/products-liabilityproduct-warranty-law">products liability</a>, a <a title="Dog Bite Law" href="/practice-areas/dog-bite-law">dog bite</a>, or <a title="Premises Liability Law" href="/practice-areas/personal-injurywrongful-death-law/premises-liability-law">premises liability</a>, your insurance policy likely obligates you to cooperate with your insurer and give an examination under oath if you want the claim covered. An examination under oath allows your insurance company to question you about your insurance claim while you are under oath and subject to penalties for perjury. Besides the criminal consequences of committing perjury during an examination under oath, committing perjury can provide your insurance company a reason to lawfully deny your claim.</p>
<p>When requested by your insurance company, submitting to an examination under oath is part of your duty to cooperate with your insurance company's review of your claim. I spoke about the consequences of failing to cooperate, which can include lawful denial of your claim, in an earlier blog <a target="_blank" title="http://erbe-law-firm.herokuapp.com/blog/posts/application-of-the-cooperation-clause-in-insurance-policies" href="http://erbe-law-firm.herokuapp.com/blog/posts/application-of-the-cooperation-clause-in-insurance-policies">post</a>. On several occasions the Iowa Supreme Court has held that examinations under oath, when requested by insurance companies, are a prerequisite to coverage.</p>
<p>Your insurance company has the sole right to decide whether an examination under oath will be conducted and the general timing of the examination. Certainly, any examinations under oath will occur during your insurance company’s review of your claim. Although insurance companies generally prefer to conduct examinations under oath early in the claims process, there are no rules mandating when examinations must actually be scheduled. Of course, your insurance has to work with you to schedule the specific date and time of your examination under oath to ensure that you have an opportunity to schedule it for a convenient time. Please note that some insurance companies (or their lawyers) have an unfortunate habit of picking a date, time, and place for your examination without first consulting you about scheduling. If that happens, and any of those details don't work for you, you must contact the person who scheduled the examination. Simply failing to show, without notifying your insurer ahead of time about any scheduling conflicts, may be considered a refusal to submit to the examination under oath and grounds for denial of your claim. &#160;&#160;&#160;</p>
<p>Although I make it seem like your insurance company can do whatever it wants regarding an examination under oath, that's not entirely true. On our insurance law page, we discuss some of the general ways in which an insurance company can be guilty of insurance bad faith, all of which apply to examinations under oath. Delaying your examination under oath, with a corresponding delay in the investigation of your claim and the claims decision, can be indicative of insurance bad faith. So can failing to properly investigate your insurance claim before denying some or all of it. It could be argued that, if your insurer makes that decision without taking your examination under oath, that its failure to examine you constitutes an inadequate investigation of your insurance claim.</p>
<p>People often have questions about what documents they should bring to an examination under oath. The easy answer is bring any types of documents that the insurance company requests when the examination is scheduled. Most letters confirming the date, time, and location of an examination under oath will also include a list of categories of documents that you're requested to bring with you to the examination or provide to the insurance company beforehand. Make sure you comply with that request to the extent you have any requested documents. Failure to do so can be considered a failure to cooperate with the insurance claims process, which can result in denial of your claim. &#160;&#160; </p>
<p>What about legal representation during your examination under oath? Although you're not required to have a lawyer, it's not a bad idea to have one to consult with before the examination under oath and to represent your interests during the examination, just like an attorney would during a deposition in an actual court case. Every examination under oath I've ever attended was conducted by a lawyer hired by the insurance company. It's a bad idea to go into that without a lawyer because anything you say during the examination can later be used against you, both to deny some or all of your claim and also as part of any lawsuits or criminal matters that arise out of the occurrence that led to the insurance claim in the first place.&#160;&#160;</p>
<p>Please feel free to contact us if you need the assistance of a <a title="Insurance Law" href="/practice-areas/insurance-law">Des Moines insurance lawyer</a>.</p>Wed, 10 Dec 2014 06:00:00 +0000http://erbelaw.com/blog/posts/examinations-under-oath-in-insurance-cases
Proving Unlawful Motives In Employment Cases<p><img data-rel="225x255" alt="Office" title="Office" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDMvNDcvMzMvMjIyL09mZmljZS5qcGciXSxbInAiLCJ0aHVtYiIsIjIyNXgyNTU%2BIl0sWyJwIiwic3RyaXAiXV0/Office.jpg" width="170" height="255" /></p>
<p>As <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">Des Moines employment lawyers</a> and <a title="Wrongful Termination Law" href="/practice-areas/employment-labor-law/wrongful-termination-law">Des Moines wrongful termination lawyers</a>, we receive many calls from folks who believe that their employers have wrongfully terminated them or made some sort of unlawful employment decision. It's of course illegal for employers to make decisions based on someone's race, sex, gender, nationality, age, religion, <a title="Disability Discrimination Law" href="/practice-areas/employment-labor-law/disability-discrimination-law">disability</a>, or sexual orientation or in retaliation for exercising certain types of rights, such as under <a title="Iowa Wage Law" href="/practice-areas/employment-labor-law/iowa-wage-law">wage laws</a>, <a title="Overtime Law" href="/practice-areas/overtime-law">overtime laws</a>, or the <a title="Family And Medical Leave Act (FMLA) Law" href="/practice-areas/employment-labor-law/family-and-medical-leave-act-fmla-law">Family and Medical Leave Act (FMLA)</a>. But how do you prove that <a title="Employment Discrimination Law" href="/practice-areas/employment-labor-law/employment-discrimination-law">employment discrimination</a> happened? You think that your employer's made a decision for an unlawful reason, but how do you establish that in court?</p>
<p>The best way is to have evidence of statements by people who were involved in whatever decision you're challenging that indicate that an unlawful motive was behind the decision. Such statements usually need to be by people who matter, not just some comment by a co-worker who had nothing to do with the employment action against you. And the statement you're referring to needs to be fairly clearly about the unlawful motive you suspect. For example, if you believe that you're the victim of sex discrimination, the statements that you wish to use as evidence should have some connection to your sex or at least to the sex of the group you belong to in general. Generic comments that don't necessarily incorporate your sex may not be good enough.</p>
<p>Another method of proving an unlawful motive is statistical evidence. This can be very basic, using just simple arithmetic, or it can be very complicated, with the use of statistical experts. If the statistics support your case, the argument can then be that, statistically speaking, the employer's decision probably shouldn't have happened in the absence of an unlawful motive. For example, in a failure-to-hire or failure-to-promote case, statistics may be used to show whether there's anything odd about a member of a certain race or sex not getting the position at issue. If the statistics indicate that the person should've have a good chance of success, that may raise questions about whether an unlawful motive was secretly driving the employer's decisionmaking. &#160;&#160; </p>
<p>An employer's failure to follow internal policies or procedures is also a common method of proving an unlawful motive. Many employers have policies or procedures used for making hiring, promotion, or disciplinary decisions. An employer's failure to follow its policies or procedures for a particular employee may be an indication that an illegal motive is behind the employer's actions.&#160; </p>
<p>Other frequent methods of proving an unlawful motive behind an employer's decision include: The lack of a full employer review, whether it's into the qualifications of a hiring or promotion applicant, as part of disciplining an employee, or as part of some other employment action; false reasons for employment action; changing reasons for employment action; adding to the reasons about an employment decision after an employee has complained or made a claim about it; destruction of evidence by the employer; and strong rebuttals by the employee of whatever basis the employer had for its decision.&#160;</p>
<p>These are just a few examples of the methods by which you may prove that your employer made a decision for unlawful reasons. Each case is unique though and needs to be evaluated on those unique facts. You may have other evidence besides the examples above to help prove that you were the victim of unlawful discrimination or unlawful retaliation.&#160; </p>Wed, 03 Dec 2014 06:00:00 +0000http://erbelaw.com/blog/posts/proving-unlawful-motives-in-employment-cases
Nursing Home Liability For Dropped Residents<p><img data-rel="225x255" alt="First Aid Kit 006" title="First Aid Kit 006" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMjUvNTUvNjU3L0ZpcnN0X2FpZF9raXRfMDA2LmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/First-aid-kit-006.jpg" width="225" height="135" /></p>
<p>Nursing home residents are often unable to move around the facility on their own. Instead, they need help from the facility's staff. While that can usually be accomplished by use of a wheelchair, the resident may need assistance transitioning from a bed or chair into the wheelchair. Nursing home falls or drops frequently occur during that crucial transition period, causing serious <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">personal injuries or death</a>.&#160; </p>
<p>Even though the nursing facility may have rules or procedures concerning patient transfers from one location to another, those procedures are oftentimes ignored or forgotten because the staff member is hurried, inexperienced, or outright negligent. The cause of dropped patients is usually not intentional nursing home abuse. Rather, patients are dropped because nursing facility staff members don't following procedures or use poor judgment. These accidents also happen because nursing facilities try to save money by minimizing staff, reducing training, and not purchasing the equipment necessary for patient safety. </p>
<p>The Centers for Disease Control estimates that a significant majority of nursing home residents cannot walk without assistance of some nature. Nursing home resident transfers commonly include transfers involving wheelchairs, toilet facilities, changing chairs, and using bathing facilities. "Hoyer lifts" are often used in nursing homes to help disabled residents during such transfers. A hoyer lift, sometimes called a patient lift, uses a sling to help nursing home residents move from one area to another during a transfer, for example from a bed&#160; into a wheelchair. They are typically hung overhead from a ceiling or placed on the floor. After the nursing home resident is placed in the sling, the hoyer lift then elevates the person in the sling and allows them to be moved.</p>
<p>Numerous factors can cause hoyer lift accidents. Nursing home staff members must know how hoyer lifts operate. They must be extremely careful when transferring a resident on a hoyer lift. A common cause of hoyer lift accidents is a staff member's failure to properly cross the lift's safety straps over the resident, allowing the resident to fall out of the lift. A fall can also happen if the nursing home resident is not properly placed in the lift. &#160; </p>
<p>Nursing home resident <a title="Premises Liability Law" href="/practice-areas/personal-injurywrongful-death-law/premises-liability-law">falls and drops</a>, although from a height that wouldn't normally cause serious injury to most folks, can be devastating for frail or bedridden patients. Their bodies are less able to withstand a fall, to say nothing of the fact that they may be physically unable to protect themselves during the fall. Those circumstances commonly cause significant fall injuries, such as broken bones in the hips, arms, legs, and face, traumatic brain injury, internal bleeding and organ damage, and even death.</p>
<p>If this happens to your family, don't let the nursing facility get by with excuses. Do something about it by contacting a <a title="Nursing Home Injuries" href="/practice-areas/nursing-home-injuries">Des Moines nursing home injury lawyer</a>. The nursing facility is being paid for accepting your family member as a resident and all of the responsibility that comes with that. That responsibility includes ensuring that the nursing facility's staffing levels are sufficient to allow staff members adequate time to safely work with the residents at all hours of the day. It also includes providing proper training and equipment for all staff members. </p>
Wed, 26 Nov 2014 06:00:00 +0000http://erbelaw.com/blog/posts/nursing-home-liability-for-dropped-residents
Not Everything Counts As Workplace Retaliation<p><img data-rel="225x255" alt="Financial Stress" title="Financial Stress" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMDMvMDYvNjk4L2ZpbmFuY2lhbF9zdHJlc3MuanBnIl0sWyJwIiwidGh1bWIiLCIyMjV4MjU1PiJdLFsicCIsInN0cmlwIl1d/financial-stress.jpg" width="225" height="169" /></p>
<p>As <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">Des Moines employment lawyers</a>, we often receive calls from folks who believe that they have been the victim of retaliation at the workplace. Perhaps that retaliation was for filing a <a title="Iowa Wage Law" href="/practice-areas/employment-labor-law/iowa-wage-law">wage</a>, <a title="Overtime Law" href="/practice-areas/overtime-law">overtime</a>, <a title="Disability Discrimination Law" href="/practice-areas/employment-labor-law/disability-discrimination-law">disability discrimination</a>, or <a title="Family And Medical Leave Act (FMLA) Law" href="/practice-areas/employment-labor-law/family-and-medical-leave-act-fmla-law">FMLA</a> claim. The retaliation often takes the form of a discharge and generates a possible claim under
<a title="Wrongful Termination Law" href="/practice-areas/employment-labor-law/wrongful-termination-law">Des Moines wrongful termination</a>
law. But here's an important point -- Not all retaliation is created equal and some things that people think of as retaliation aren't considered retaliation under the law.</p>
<p>A retaliation claim requires proof of an "adverse employment action." That requirement means that not all employer conduct generates a retaliation claim. Adverse employment action detrimentally affects the terms, conditions, or privileges of employment. A wide variety of facts can constitute a materially adverse employment action. The definition of an "adverse employment action" includes subtle conduct such as depriving an employee of the opportunity to advance, as well as more obvious actions such as disciplinary demotion, termination, unjustified evaluations and reports, loss of normal work assignments, and extension of probationary period. Internal transfers from department to department can also constitute adverse employment action when accompanied by a negative change in the terms and conditions of employment. But internal transfers involving minor changes in working conditions and no reduction in pay or benefits will not constitute an adverse employment action. In other words, minor changes in working conditions that only amount to an inconvenience cannot support discrimination. &#160; </p>
<p>In <em>Colbert v. State of Iowa</em>, the Iowa Court of Appeals recently determined that a supervisor's actions against an employee were not sufficiently severe to constitute adverse employment action. The plaintiff alleged several retaliatory acts, including her supervisor trying to force her to leave her position, her supervisor “berating” her for her complaints of verbal and physical harassment, the failure to investigate her internal complaints, and her supervisor’s attempt to undermine her civil rights complaint in his interview with the DAS. The court held that her employer's activities did not amount to adverse employment action: "Even if the acts complained of occurred in the manner described by Colbert, no adverse employment action resulted. The record reveals a toxic work environment existed, but does not show how the 'terms, conditions, or privileges of [her] employment' were impacted by this work environment."</p>
<p>What about physical attacks? Can they count as an adverse employment action sufficient to support a retaliation claim? Two Iowa cases have considered that question.</p>
<p>A physical attack was determined to have constituted an adverse employment action in <em>Estate of Harris v. Papa John's Pizza. </em>The assistant manager of a Papa John’s restaurant punched a subordinate employee in the chest for reporting an alleged affair between the assistant manager and another employee. The subordinate employee subsequently died from the punch. The Iowa Supreme Court concluded that the chest shot could be construed as an adverse employment action attributable to Papa John’s because the employee’s death resulted in the termination of his employment.” </p>
<p>Conversely, in <em>Colbert</em> the Iowa Court of Appeals ruled that a physical attack was not sufficient to constitute an adverse employment action and support a retaliation claim. After disagreeing with a decision made by her supervisor, the employee attempted to discuss the issue with other co-workers. Her supervisor admitted that he “snapped” and began to yell at her, grabbing her arm and directing her into his office where he continued to yell at her and physically prevented her from leaving for a time. The court decided that the arm grab and related physical contact did not constitute an adverse employment action. The situation was different than in the Papa John's case because, unlike that employee, Colbert did not die or suffer any other employment action as a result of her supervisor's physical contact.</p>Wed, 19 Nov 2014 06:00:00 +0000http://erbelaw.com/blog/posts/not-everything-counts-as-workplace-retaliation
Pre-Employment Promises To Employees Are Generally Unenforceable<p><img data-rel="225x255" alt="Financial Stress" title="Financial Stress" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMDMvMDYvNjk4L2ZpbmFuY2lhbF9zdHJlc3MuanBnIl0sWyJwIiwidGh1bWIiLCIyMjV4MjU1PiJdLFsicCIsInN0cmlwIl1d/financial-stress.jpg" width="225" height="169" /></p>
<p>In past posts and on our website we've discussed the limited rights that at-will employees have under Iowa law. At-will employees can generally be fired at any time for any lawful reason without warning. Employers can also change at-will employees' terms and conditions of employment for any lawful reason, many times without notice as well. At-will employees pretty much have no choice but to go along with those changes, or quit.</p>
<p>One common scenario that we encounter, particularly as <a title="Wrongful Termination Law" href="/practice-areas/employment-labor-law/wrongful-termination-law">Des Moines wrongful termination lawyers</a>, are pre-employment promises or representations about continued employment that employers make to employees during the hiring process. The effects of such statements by employers depend upon the language used and the precision of that language. The more precise the language regarding continued employment, the better it is for the employee.</p>
<p>&#160;The Iowa Supreme Court has considered this question a few times. On at least one occasion, <em>Barske v. Rockwell International Corp.</em>, the court ruled that an employer made valid and enforceable promises of continuing employment. During the job interviews and at an orientation session, the employees claimed they were told their employment would be for a period of at least three to five years. They were assured that the company had sufficient orders on hand and the orders were secured by substantial down payments. All of the plaintiffs were laid-off within a year of being hired and successfully sued because the promised minimum of three-years employment never materialized. Interestingly, the jury ruled for the plaintiffs, and the Iowa Supreme Court upheld that verdict, even though the employees signed a disclaimer that stated that "I also acknowledge that this Application is for employment of indefinite duration that can be terminated with or without cause and notice at any time, either by Rockwell or me, except as otherwise provided by the terms of a collective bargaining agreement applicable to me."</p>
<p>Plaintiffs have not been so lucky since <em>Barske.</em>&#160; In <em>Fry v. Mount</em>, the employee claimed that the employer had promised him "long-term" employment and broke that promise when it fired him after only a few months employment. The Iowa Supreme Court determined that the promise of long-term employment did not alter the general at-will employment principles summarized above, concluding that "Mount and Whalen did no more than express their expectation that the person hired would enjoy long-term employment. Their representation was made to 'sell' Fry on their company, not to guide him with professional employment advice." </p>
<p>A similar decision was reached in <em>Thompson v. City of Des Moines</em>. That employee asserted that "his position would not be terminated except for just cause and pursuant to established disciplinary procedures." He was later let go as part of a reorganization. That was counter to the employee's impression that the job would be his as long as he wanted it unless he made some mistake warranting termination. The Iowa Supreme Court rejected the employee's under its earlier <em>Fry</em> decision: "Just as in Fry, Wilkey was trying to 'sell' Thompson on employment with the City of Des Moines. They were not negotiating the terms of a binding contract for lifetime employment."</p>
<p>The takeway from these cases is that anything short of the specific promises made in <em>Barske</em> will probably not be enough to alter the standard at-will employment principles. But each case still needs to be evaluated on its own facts. Please feel free to contact us if you need the assistance of a <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">Des Moines employment lawyer.</a>
</p>Wed, 12 Nov 2014 21:41:00 +0000http://erbelaw.com/blog/posts/pre-employment-promises-to-employees-are-generally-unenforceable
General Requirements For Reasonable Disability Accommodations<p><img data-rel="225x255" alt="Handicap" title="Handicap" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDMvNTEvMTcvNzk4L0hhbmRpY2FwLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/Handicap.jpg" width="170" height="255" /></p>
<p>In past posts <a target="_blank" title="http://erbelaw.wordpress.com/2013/10/30/job-reassignment-as-a-reasonable-accommodation-under-disability-discrimination-law/" href="http://erbelaw.wordpress.com/2013/10/30/job-reassignment-as-a-reasonable-accommodation-under-disability-discrimination-law/">here</a>, <a target="_blank" title="http://erbelaw.wordpress.com/2013/04/03/can-working-from-home-be-a-reasonable-disability-accommodation/" href="http://erbelaw.wordpress.com/2013/04/03/can-working-from-home-be-a-reasonable-disability-accommodation/">here</a>, and <a target="_blank" title="http://erbe-law-firm.herokuapp.com/blog/posts/do-employers-have-to-accommodate-service-animals-in-the-workplace" href="http://erbe-law-firm.herokuapp.com/blog/posts/do-employers-have-to-accommodate-service-animals-in-the-workplace">here</a> regarding our <a title="Disability Discrimination Law" href="/practice-areas/employment-labor-law/disability-discrimination-law">Des Moines disability discrimination</a> practice as <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">Des Moines employment lawyers</a>, we've discussed various specific situations involving reasonable accommodations and state and federal disability discrimination law. But not all requests for a reasonable accommodation encompass one of those specific areas, each with its rules and considerations. So what are the general guiding principles for reasonable accommodation requests? </p>
<p>When an individual decides to request accommodation, the individual must let the employer know that an adjustment or change at work is necessary for a reason related to a medical condition. To request accommodation, an individual may use "plain English" and need not mention any specific state or federal law or use the phrase "reasonable accommodation." While an individual with a disability may request a change due to a medical condition, this request does not necessarily mean that the employer is required to provide the change. A request for reasonable accommodation is the first step in an informal, interactive process between the individual and the employer. I'll discuss that "interactive process" in more detail in a later blog post.</p>
<p>An employer is required to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified handicapped applicant or employee unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of its business. That requirement extends to employees who develop a disability after their employment begins. When an individual becomes disabled, from whatever cause, during a term of employment, the employer shall make every reasonable effort to continue the individual in the same position or to retain and reassign the employee and to assist that individual’s rehabilitation. So there are two main components to the reasonable accommodation analysis:&#160; (1) is the accommodation reasonable and (2) would the requested accommodation be an undue hardship for the employer?&#160;&#160;</p>
<p>Reasonable accommodation may include making facilities used by employees readily accessible to and usable by handicapped persons, and job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices, the provision of readers or interpreters, and other similar actions. An accommodation is unreasonable if it requires the employer to change the essential nature of the job or if it places undue burdens on the employer. Moreover, a reasonable accommodation must be made by an employer only if it does not substantially impinge on the rights of other employees.</p>
<p>In determining whether an accommodation would impose an undue hardship on the operation of an employer’s business, factors to be considered include the overall size of the employer’s program with respect to number of employees, number and type of facilities, and size of budget; the type of the employer’s operation, including the composition and structure of the employer’s workforce; and the nature and cost of the accommodation needed. Thus, in considering the reasonableness of an employer's accommodation of an employee's disability, courts must consider not only the disabled employee's needs but also the economic realities faced by the employer. Generalized conclusions will not suffice to support a claim of undue hardship. Instead, undue hardship must be based on an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense. If an employer determines that one particular reasonable accommodation will cause undue hardship, but a second type of reasonable accommodation will be effective and will not cause an undue hardship, then the employer must provide the second accommodation. An employer cannot claim undue hardship based on employees' (or customers') fears or prejudices toward the individual's disability. Nor can undue hardship be based on the fact that provision of a reasonable accommodation might have a negative impact on the morale of other employees. Employers, however, may be able to show undue hardship where provision of a reasonable accommodation would be unduly disruptive to other employees's ability to work.</p>
<p>If an employee's ability to do her job depends on reasonable accommodation, the employee must make an initial showing that a reasonable accommodation was possible. That is not hard to prove. It requires no more of the employee than to propose an accommodation and present testimony of its feasibility. If the plaintiff shows a reasonable accommodation is possible, the burden shifts to the employer to prove that it is not able to accommodate the plaintiff's disability or that the proposed accommodation is unreasonable.</p>
<p>Please feel free to contact us if you need the assistance of a <a title="Employment Discrimination Law" href="/practice-areas/employment-labor-law/employment-discrimination-law">Des Moines disability discrimination lawyer</a>.</p>Wed, 05 Nov 2014 06:00:00 +0000http://erbelaw.com/blog/posts/general-requirements-for-reasonable-disability-accommodations
What's The Required Manner Of FMLA Employer Notices?<p><img data-rel="225x255" alt="021749 Doctor Gp Medical Hospital Stethoscope Generic" title="021749 Doctor Gp Medical Hospital Stethoscope Generic" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDMvNTUvNTkvOTY3LzAyMTc0OV9kb2N0b3JfZ3BfbWVkaWNhbF9ob3NwaXRhbF9zdGV0aG9zY29wZV9nZW5lcmljLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/021749-doctor-gp-medical-hospital-stethoscope-generic.jpg" width="225" height="127" /></p>
<p>As <a title="Family And Medical Leave Act (FMLA) Law" href="/practice-areas/employment-labor-law/family-and-medical-leave-act-fmla-law">Des Moines FMLA lawyers</a> we sometimes encounter cases in which an employer has not provided an employee with all of the notices the FMLA requires. We discussed some of those notices in an earlier blog <a target="_blank" title="http://erbe-law-firm.herokuapp.com/blog/posts/so-you-ve-applied-for-fmla-now-what" href="http://erbe-law-firm.herokuapp.com/blog/posts/so-you-ve-applied-for-fmla-now-what">post</a>. In general, the FMLA requires employers to provide employees with both general and individual notice about the FMLA. To meet the general notice requirements, an employer must post a notice of FMLA rights on its premises. Because employers have some discretion in the way FMLA policies are implemented, employers must also include information regarding the employer's FMLA policies in a handbook or similar publication. Additionally, regulations issued by the Department of Labor require that an employer give employees individual written notice that an absence falls under the FMLA, and is therefore governed by it.&#160;</p>
<p>So we know the types of FMLA notices that employers are required to give their employees. But in what manner must employers deliver that notice? Regular mail? Email? In person? Recent federal court decision suggest that there are no easy answers to that question and that it'll often to be up to a jury to decide whether an employee received proper FMLA notice in <a title="Wrongful Termination Law" href="/practice-areas/employment-labor-law/wrongful-termination-law">Des Moines wrongful termination</a> cases.</p>
<p>The United States Court of Appeals for the Third Circuit recently held in <em>Lupyan v. Corrinthian Colleges, Inc. </em>that an employer's assertion that it sent FMLA notice to an employee by regular mail was not definitive proof of the employee's receipt of that mailing in the face of the employee's denial that she ever received the mailed notice. A big problem for the employer was that it didn't send the letter certified or in any other manner that would allow tracking or receipt confirmation. Basically, the employer could prove that it mailed the notice, but it couldn't prove that the employee received it. A jury would have to resolve that conflict in the evidence concerning whether the employee received the FMLA notice that the employer claimed it mailed her.&#160;</p>
<p>The Third Circuit was critical of the employer for not using other available methods to deliver the employee's FMLA notice: "In this age of computerized communications and handheld devices, it is certainly not expecting too much to require businesses that wish to avoid a material dispute about the receipt of a letter to use some form of mailing that includes verifiable receipt when mailing something as important as a legally mandated notice. The negligible cost and inconvenience of doing so is dwarfed by the practical consequences and potential unfairness of simply relying on business practices in the sender's mailroom."</p>
<p>On the other hand, a Michigan federal district court recently determined in <em>Gardner v. Detroit Entertainment, L.L.C. </em>that a question for trial arose when an employer transmitted an employee's FMLA notice by email, which is exactly one of the methods of delivery that the <em>Lupyan</em> court had earlier recommended. <em>Gardner</em> involved FMLA notice requirements for employer recertification. The court noted that, just like with regular mail, it cannot automatically be presumed that an employee receives an email sent by the employer: "The transmitting of an email, in the absence of any proof that the email had been opened and actually received, can only amount to proof of constructive notice. This distinction becomes particularly significant when an employee has expressed a preference for correspondence to be sent by postal mail, as opposed to email."</p>
<p>In sum, it appears that, regardless of the method of delivery, employees can always create an issue for trial regarding receipt of any required FMLA notice as long as they can truthfully deny receipt of the notice.</p>
<p>Please fee free to contact us if you need the assistance of a <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">Des Moines employment lawyer</a>.</p>Wed, 29 Oct 2014 06:00:00 +0000http://erbelaw.com/blog/posts/what-s-the-required-manner-of-fmla-employer-notices
The Legal Protections For Pregnant Employees<p><img data-rel="225x255" alt="021749 Doctor Gp Medical Hospital Stethoscope Generic" title="021749 Doctor Gp Medical Hospital Stethoscope Generic" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDMvNTUvNTkvOTY3LzAyMTc0OV9kb2N0b3JfZ3BfbWVkaWNhbF9ob3NwaXRhbF9zdGV0aG9zY29wZV9nZW5lcmljLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/021749-doctor-gp-medical-hospital-stethoscope-generic.jpg" width="225" height="127" /></p>
<p>In our <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">Des Moines employment law</a> practice, we sometimes encounter employers who either don't know or don't care that a pregnancy, although temporary, leads to significant employee rights. On the one hand, many employers treat pregnant employees quite well, often as a result of traditional decency and practices, rather than because of any legal obligations. But employers who choose not to do that can run afoul of special laws that apply to pregnant employees, such as those governing <a target="_blank" title="http://erbelaw.wordpress.com/2008/03/20/common-employer-mistakes-maternity-and-pregnancy-leave/" href="http://erbelaw.wordpress.com/2008/03/20/common-employer-mistakes-maternity-and-pregnancy-leave/">maternity and pregnancy leave</a>. </p>
<p>Employers also often don't realize that improper treatment of pregnant employees can also violate state and federal discrimination laws. Pregnancy discrimination includes treating a woman unfavorably because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. For example, Iowa Code 216.6(2) specifically prohibits employers from refusing to hire or terminating an employee because of that employee's pregnancy. There's also the federal Pregnancy Discrimination Act ("PDA"), which is an amendment to Title VII of the Civil Rights Act of 1964.&#160; It prohibits discrimination based on pregnancy concerning any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, such as leave and health insurance, and any other term or condition of employment. And, similar to Iowa Code 216.6(2), the PDA, an employer that allows temporarily disabled employees to take disability leave or leave without pay, must allow an employee who is temporarily disabled due to pregnancy to do the same.</p>
<p>From a general discrimination standpoint, if a medical condition related to pregnancy or childbirth temporarily prevents a woman from performing her job, her employer must treat her the same as it treats any other temporarily disabled employee. The employer may have to provide reasonable accommodation for the pregnant employee, such as leave, different assignments, or light duty assignments if it does that for other temporarily disabled employees who are not pregnant. Additionally,&#160; an employer may not single out pregnancy-related conditions for special procedures to determine an employee's ability to work. </p>
<p>The Americans With Disabilities Act may also be implicated by a pregnancy. Although a pregnancy itself is never considered a disability within the ADA's meaning, complications and medical conditions arising from a pregnancy certainly can be. Particularly with the passage of the <a target="_blank" title="http://erbelaw.wordpress.com/2013/11/12/regarded-as-or-perceived-disability-claims-under-the-americans-with-disabilities-act/" href="http://erbelaw.wordpress.com/2013/11/12/regarded-as-or-perceived-disability-claims-under-the-americans-with-disabilities-act/">Americans With Disabilities Act Amendments Act</a>, pregnancy-related medical conditions are receiving increasingly greater protections under federal law. A pregnancy-related disability may in turn entitle the employee to reasonable workplace accommodations, just like any other disability. The Equal Employment Opportunity Commission's Enforcement Guide for pregnancy issues describes one such possible situation that can be used to guide employers and employees in similar situations: "In Amy's fifth month of pregnancy, she developed high blood pressure, severe headaches, abdominal pain, nausea, and dizziness. Her doctor diagnosed her as having preeclampsia and ordered her to remain on bed rest through the remainder of her pregnancy. This evidence indicates that Amy had a disability within the meaning of the ADA, since she had a physiological disorder that substantially limited her ability to perform major life activities such as standing, sitting, and walking, as well as major bodily functions such as functions of the cardiovascular and circulatory systems. The effects that bed rest may have had on alleviating the symptoms of Amy's preeclampsia may not be considered, since the ADA Amendments Act requires that the determination of whether someone has a disability be made without regard to mitigating measures."&#160;</p>
<p>Please feel free to contact us if you need the assistance of a <a title="Disability Discrimination Law" href="/practice-areas/employment-labor-law/disability-discrimination-law"></a>
<a title="Disability Discrimination Law" href="/practice-areas/employment-labor-law/disability-discrimination-law">Des Moines disability discrimination lawyer</a>
.</p>Wed, 15 Oct 2014 06:00:00 +0000http://erbelaw.com/blog/posts/the-legal-protections-for-pregnant-employees
Bed Bugs Continue To Be An Issue <p><img data-rel="225x255" alt="First Aid Kit 006" title="First Aid Kit 006" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMjUvNTUvNjU3L0ZpcnN0X2FpZF9raXRfMDA2LmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/First-aid-kit-006.jpg" width="225" height="135" /></p>
<p>We continue to see bed bug cases in our Des Moines personal injury law practice. Most of those claims involve apartment buildings. Liability against apartment complex owners and property managers is commonly based on premises liability, landlord/tenant law violations, and Iowa's private consumer fraud statute. I previously wrote about bed bug liability <a target="_blank" title="http://erbelaw.wordpress.com/2009/04/08/sleep-tight-dont-let-the-bedbugs-bite/" href="http://erbelaw.wordpress.com/2009/04/08/sleep-tight-dont-let-the-bedbugs-bite/">here</a> and <a target="_blank" title="http://erbelaw.wordpress.com/2011/04/15/96/" href="http://erbelaw.wordpress.com/2011/04/15/96/">here</a>.</p>
<p>At a minimum bed bugs are a serious annoyance. In more serious situations bed bug bites can cause significant personal injuries. Bed bugs can get into your bed, your furniture, and your carpet. They can bite you whether you're sleep or awake.&#160; </p>
<p>Bed bugs are a reddish-brown color, small, flat, oval-shaped insects. They lack wings. Bed bugs use humans to transport them. They feed on human or animal blood. Bed bugs are usually active at night. They most commonly, but not always, feed while their victims are sleeping.</p>
<p>The damage caused by a bed bug bite varies from person to person. Some bed bug bite victims have no reaction at all. On the other side of the spectrum, some people have severe reactions to bed bug bites, which can cause a need for medical and even permanent scarring. But the most common symptoms of a bed bug bite are likely to experience one or more of the following are a a red, swollen area and a dark red center, bites in a line or grouped together in a small area, and blisters or hives at the bite sites.&#160; </p>
<p>Bed bug bites can occur anywhere on a person's body. They most frequently happen on areas of skin that are exposed while sleeping. Examples include the face, arms, legs, and hands.</p>
<p>You won't always notice a bed bug bite immediately after you're bitten. It might be a few days before you start to notice symptoms. Itching and burning are common skin sensations after a bed bug bite.</p>
<p>As noted, bed bug bites normally don't cause more than temporary discomfort. Bed bugs do not transmit diseases through their bites. Infection from scratching around the bite site is the most common side effect of a bed bug bite. On the the other hand, a person who's allergic to bed bug bites may have more severe symptoms, including painful burning and swelling around the bite.&#160; </p>
<p>Bed bugs are commonly found in buildings that have many people, frequent turnover of occupants, and close quarters. Worse, even if you don't spend significant time in such places, you can carry bed bugs home with you. Bed bugs are often found in apartment buildings, hotels, shelters, hospitals, business offices, and college dorms.</p>
<p>As we said, bed bugs are usually more irritating than they are dangerous. For most bed bug bite victims, a bite's symptoms will be temporary and will only last a week or two. Use ice, anti-itch creams, and antihistamines to fight the itching and burning from the bite.&#160;</p>
<p>From a legal standpoint, you can help protect your legal rights in these cases by taking a few steps:</p>
<ul><li>Complain to the property owner. Demand something be done about the situation. Document all such complaints. The best way to do that is to make your complaints by email.</li>
<li>Photograph all bed bug bites and resulting skin issues.</li>
<li>Photograph any bed bugs that are captured or found dead. Save them in an enclosed container. Dead bed bugs should be photographed where they're found, then moved to a storage container.</li>
<li>Ask other people in the building whether they have had any issues with bed bugs.</li>
<li>Find out who handles pest control for the building. Contact that pest control company to see if it has any information about prior or current infestations.</li>
<li>Visit a doctor about the bites, even if they're minor. Bed bug bites are often mistaken for other bites (mosquito and flea bites are common misinterpretations) or for other skin conditions (such as scabies) that aren't caused by a bed bug bite. This is important if you intend to make a personal injury claim for bed bug bites. Don't expect that everyone will just agree that the bites are from a bed bug unless you have medical proof to support that argument.&#160;</li>
</ul>
<p>Please feel free to contact us if you need the assistant of a <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">Des Moines personal injury lawyer</a> regarding a bed bug matter.</p>Tue, 07 Oct 2014 06:00:00 +0000http://erbelaw.com/blog/posts/bed-bugs-continue-to-be-an-issue
Iowa Court Of Appeals Emphasizes At-Will Employees' Lack Of Rights <p><img data-rel="225x255" alt="Financial Stress" title="Financial Stress" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMDMvMDYvNjk4L2ZpbmFuY2lhbF9zdHJlc3MuanBnIl0sWyJwIiwidGh1bWIiLCIyMjV4MjU1PiJdLFsicCIsInN0cmlwIl1d/financial-stress.jpg" width="225" height="169" /></p>
<p>As <a title="Wrongful Termination Law" href="/practice-areas/employment-labor-law/wrongful-termination-law">Des Moines wrongful termination lawyers</a>, we know that Iowa law gives very little protection to at-will employees. We discuss the concept of at-will employment, and an at-will employee's limited rights, on our <a title="Wrongful Termination Law" href="/practice-areas/employment-labor-law/wrongful-termination-law">Wrongful Termination</a> page. On October 1, in <em>Celia Drayfahl v. City of Wapello</em>,the Iowa Court of Appeals provided the latest indication of how difficult it is for at-will employees to sue for wrongful termination.</p>
<p>The City of Wapello fired Celia Drayfahl, allegedly for performance reasons. But it failed to follow the necessary procedures for firing a city employee. In particular, the city fired Drayfahl without involving the city council.</p>
<p>Drayfahl sued the city for wrongful termination in violation of public policy. Drayfahl argued that her termination was in violation of public policy because the city failed to follow proper procedural guidelines as set forth by ordinance and statute in firing her. The Court of Appeals noted that in order to succeed on her claim for wrongful termination in violation of public policy, Drayfahl had to prove: (1) The existence of a clearly defined and well-recognized public policy that protects the employee’s activity; (2) this public policy would be undermined by the employee’s discharge from employment; (3) the employee engaged in the protected activity, and this conduct was the reason the employer discharged the employee; and (4) the employer had no overriding business justification for the discharge.</p>
<p>Drayfahl's claim failed because she couldn't prove that she was fired for engaging in any protected activity. Examples of protected activities include enforcing a statutory right, refusing to participate in illegal activity, and whistleblowing. Fatal to Drayfahl’s wrongful termination claim was her failure to allege that she was terminated for engaging in any activity protected by public policy. Instead, her claim was that the city violated public policy in failing to follow its own termination procedures as mandated by statute and ordinance, that she had the right, as part of her employment, to expect that the employer would follow its procedures and policies. But, at least for claims asserting wrongful termination in violation of public policy, an employer's failure to follow policies or procedures is not enough standing alone to create a meritorious wrongful termination claim.&#160;</p>
<p>Thus the Iowa Court of Appeals ruled that Drayfahl couldn't sue for wrongful termination. Her claim focused only on the city's actions during the process of firing her. She did not demonstrate the existence of a clearly defined and well-recognized public policy that protected her activity. Nor did she argue that that she was terminated for engaging in any protected activity.&#160;&#160;</p>
<p>Please feel free to contact us if you need the assistance of a <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">Des Moines employment lawyer</a>.</p>Fri, 03 Oct 2014 06:00:00 +0000http://erbelaw.com/blog/posts/iowa-court-of-appeals-emphasizes-at-will-employees-lack-of-rights
Safety Considerations For The Use Of Restraints In Nursing Homes<p><img data-rel="225x255" alt="First Aid Kit 006" title="First Aid Kit 006" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMjUvNTUvNjU3L0ZpcnN0X2FpZF9raXRfMDA2LmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/First-aid-kit-006.jpg" width="225" height="135" /></p>
<p>Nursing home facilities sometimes find it necessary to restrain a resident. That can happen to protect the resident (for example, from falls or wandering off), other residents, or staff.&#160; Restraints in nursing homes come in two forms -- physical and chemical.&#160; As <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">Des Moines personal injury lawyers</a>, we’re aware that physical and chemical restraints can be as helpful as they are harmful to nursing home residents. </p>
<p>Federal law is supposed to limit the use of restraint in nursing care facilities. The Nursing Home Reform Law of 1987 provides that nursing home residents have the right to be free from physical or chemical restraints imposed for purposes of discipline or convenience, or that are otherwise not required to treat the resident's medical symptoms. Of course, the obvious loopholes in that law allow for the use of physical or chemical restraints when necessary for the resident's medical treatment, which allows nursing facilities to cover the prohibited uses for "discipline" or "convenience" by claiming that there was some medical reason for the restraint.&#160; </p>
<p>Some nursing homes place residents in physical restraint devices. Unfortunately, although physical restraints are primarily intended to protect the resident, medical science demonstrates that physical restraints are not effective and can be harmful to the resident's health. Medical research discloses that the use of physical restraints, even when done properly, on residents in nursing facilities or assisted living facilities can harm the resident in various ways. Physical restraints may lead to confusion, aggression, lethargy, a feeling of isolation, and depression in addition to numerous other mental and physical problems. </p>
<p>Sometimes physical restraints aren't used; instead, restraint is accomplished through the use of chemicals. Nursing home residents may be given sedatives to calm them. Chemical restraint is particularly common for residents who frequently disobey facility rules or ignore staff requests. Danger arises when nursing facility employees illegally increase, contrary to a doctor's recommendations, the prescribed dose of such medications for patients that they're having a difficult time controlling. Family members may notice such overdosing during visits with the resident, who can demonstrate noticeable changes in mood or behavior, such as lethargy, sleepiness, exhaustion, and violent mood swings.</p>
<p>Given the risks of physical and chemical restraints in nursing homes, the federal government recommends that various types of rehabilitative measures be taken instead of restraints. Those alternative methods have been shown to be safer and more effective in nursing and assisted living facilities. Although the new approach differs from patient to patient, rehabilitation focuses on residents' right to choose how they are cared for, along with the continued resident's continued mental health.</p>
<p>Because of the dangers of restraints and the fact that federal law only allows the use of chemical and physical restraints under certain circumstances, nursing care facilities will often try to hide the use of restraints from family members when they come to visit. Like many other areas of nursing home abuse and liability, often the best defense against such misconduct is watchful family members. Indications that a family member has been subject to physical or chemical restraint include visible restraining devices in the resident’s room, especially on bed frames, physical marks of straps and other types of restraints, and signs that the resident has been over-medicated on a sedative or similar product.</p>
<p>Please feel free to contact us if you need the assistance of a <a title="Nursing Home Injuries" href="/practice-areas/nursing-home-injuries">Des Moines nursing home injury lawyer</a>.</p>Tue, 30 Sep 2014 06:00:00 +0000http://erbelaw.com/blog/posts/safety-considerations-for-the-use-of-restraints-in-nursing-homes
Telling Lies To Support Your FMLA Request Can Get You Fired<p><img data-rel="225x255" alt="021749 Doctor Gp Medical Hospital Stethoscope Generic" title="021749 Doctor Gp Medical Hospital Stethoscope Generic" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDMvNTUvNTkvOTY3LzAyMTc0OV9kb2N0b3JfZ3BfbWVkaWNhbF9ob3NwaXRhbF9zdGV0aG9zY29wZV9nZW5lcmljLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/021749-doctor-gp-medical-hospital-stethoscope-generic.jpg" width="225" height="127" /></p>
<p>It should go without saying that lying to your employer or falsifying company documents is grounds for termination. Employers' right to fire employees for lying or falsifying company documents extends to statements and documents that are submitted as part of a leave request under the Family and Medical Leave Act. Yet some employees believe that they're immune from discipline as long as their dishonesty occurs as part of an FMLA leave request. Those employees are sadly mistaken. As <a title="Wrongful Termination Law" href="/practice-areas/employment-labor-law/wrongful-termination-law">Des Moines wrongful termination lawyers</a> we know that federal courts have rejected FMLA claims when the reason for the employee's discharge was dishonesty during the FMLA approval process.</p>
<p>Based upon our experience in our <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">Des Moines employment law</a> practice, the belief that the FMLA excuses dishonesty is likely derived from a greater misunderstanding about the extent of the protections the FMLA grants employees. The FMLA doesn't make employees bulletproof, untouchable, or immune from all discipline. Rather, at its core the FMLA merely prohibits employers from interfering with employees' right to FMLA leave and from retaliating against employees because they requested or received FMLA leave. But that doesn't mean that you can't be disciplined, even fired, for reasons unrelated to the FMLA, even while you're on FMLA leave.&#160; </p>
<p>For example, if, while you're on FMLA leave, your employer learns that you've been stealing from the company, you can be fired right then and there, even while you're on medical leave. That's legal because your employer is firing you because of misconduct (stealing), not in retaliation for requesting or taking FMLA leave. You can still sue under the FMLA and argue and try to prove that your employer made up the theft allegation or that your theft wasn't the real reason you were fired. You'd have to prove that your employer's just making that up or using it as an excuse to cover the true reason for your firing, which was to retaliate against you for exercising your FMLA rights. But what usually doesn't work is admitting to the misconduct but claiming that your employer can't do anything about it because you're on FMLA and thus untouchable. You're in for a harsh wake-up call on that one. &#160; &#160;&#160;</p>
<p>Dishonesty or falsification of records most commonly occurs in two respects during the FMLA leave certification process. First, employees sometimes lie to their doctors about symptoms in order to get the doctor to complete and sign the FMLA health care provider certification. In one such case, an employee told his doctor that he suffered from dizzy spells and similar symptoms after a blow to the head while working. Based on the employee's statements, the doctor signed the FMLA certification and the employer approved the FMLA leave. All good, except that during the employee's medical leave he spent his time building a porch on his house, which included climbing on a ladder and engaging in the various activities he told his doctor he couldn't engage in at work. It was clear that this employee had been dishonest with his doctor in order to convince the doctor to sign the FMLA form, so his employer fired him. He lost his FMLA retaliation case because the court concluded that he'd been legitimately fired for dishonesty during the FMLA approval process.</p>
<p>A second type of dishonesty that occurs during the FMLA approval process is altering health care provider certifications after they've been completed and signed by the provider. Sometimes employees don't like something the doctor wrote in the form, so they change it on their own. Or the employer requires additional information that the doctor refuses to provide, so the employee just changes the form after the doctor's signed it and passes the information off as the doctor's. Altering an FMLA certification after the doctor's signed it will by default be deemed a falsification of company records (the employer will consider the FMLA certification to be a company record). An employee who gets caught altering an FMLA certification after a doctor's signed it had better have a really good explanation, and probably support from the doctor and the doctor's office, to avoid employment trouble for changing the FMLA medical certification. Federal courts have approved the discharge of employees who were caught altering FMLA health care provider certifications after the form was signed by the doctor.</p>
<p>Please fee free to contact us if you need the assistance of a <a title="Family And Medical Leave Act (FMLA) Law" href="/practice-areas/employment-labor-law/family-and-medical-leave-act-fmla-law">Des Moines FMLA lawyer</a>.</p>Fri, 26 Sep 2014 09:00:00 +0000http://erbelaw.com/blog/posts/telling-lies-to-support-your-fmla-request-can-get-you-fired
Revisiting The “Personnel Authority” Requirement Under The Executive Exemption To Overtime Coverage<p><img data-rel="225x255" alt="Clock" title="Clock" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDUvMTAvNTkvODg1L2Nsb2NrLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/clock.jpg" width="225" height="207" /></p>
<p>Two years ago I wrote a <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">Des Moines employment law</a> blog <a target="_blank" title="http://erbelaw.wordpress.com/2012/09/05/the-personnel-authority-requirement-under-the-executive-exemption-to-overtime-coverage/" href="http://erbelaw.wordpress.com/2012/09/05/the-personnel-authority-requirement-under-the-executive-exemption-to-overtime-coverage/">post</a> regarding the "personnel authority" requirement for the executive exemption to the default federal requirement that all salaried employees receive overtime for any week in which they exceed forty hours of work. I predicted that, because of common employer treatment of mid-level managers, the personnel authority requirement would receive increasing attention in overtime lawsuits. A decision by the United States Court of Appeals for the Eighth Circuit (whose appellate jurisdiction includes Iowa's federal courts) demonstrates just how important the personnel authority requirement is becoming.</p>
<p>In that case, <em>Madden v. Lumber One Home Center</em>, the employer classified the suing employees as exempt executive employees, i.e., managers. The fight was over whether these employees could truly be considered "executives," such that they weren't entitled to overtime pay no matter how many hours they worked in a week. At the center of that issue was the "personnel authority" requirement.</p>
<p>The Eight Circuit noted that " to qualify for an executive exemption, Lumber One must show, among other things, that the plaintiffs were involved in making personnel decisions." That required the employer to prove that the plaintiffs had the authority to hire or fire employees, or that their recommendations regarding personnel decisions were given "particular weight" by the decisionmaker. Although the trial jury concluded that the employer had proved the personnel authority requirement for all plaintiffs, the trial court reversed that decision for two of three plaintiffs and ruled that they were in fact entitled to overtime pay. In reaching that determination, the district court found that Lumber One presented no evidence that the plaintiffs had the authority to make personnel decisions or that Lumber One's owner gave their hiring recommendations particular weight.</p>
<p>On appeal, the Eighth Circuit first answered what had been an open question in this federal jurisdiction -- What type and what amount of input into personnel decisions is sufficient to satisfy the personnel authority element of the FLSA's executive exemption. The answer is that more than informal input, of the type solicited from all employees, is needed to prove the requisite level of personnel authority. The court held that two of the plaintiffs did not have sufficient authority to satisfy that test.</p>
<p>The owner testified that none of the plaintiffs hired or fired other employees. Thus, in order to satisfy the personnel authority requirement, the employer needed to present evidence at trial that the plaintiffs were consulted about personnel decisions and that the employer gave each of their opinions particular weight regarding specific personnel decisions.&#160; That is where this employer came up short. There was no evidence that the owner gave any special consideration to personnel recommendations made by the plaintiffs or allowed those recommendations to have more influence than that from other, nonmanagement employees. The entirety of his attempts to seek the plaintiffs' personnel input consisted of running names by them to see whether they knew applicants and whether they thought that any shouldn't be hired. That's simply not enough to satisfy the "personnel authority" requirement.&#160;</p>
<p>Overtime cases require legal analysis of federal statutes, U.S. Department of Labor regulations, and court decisions. Please feel free to contact us if you need the assistance of a <a title="Overtime Law" href="/practice-areas/overtime-law">Des Moines overtime lawyer</a>.</p>Tue, 23 Sep 2014 06:00:00 +0000http://erbelaw.com/blog/posts/revisiting-the-personnel-authority-requirement-under-the-executive-exemption-to-overtime-coverage
Possible Liability Issues Regarding Trees<p><img data-rel="225x255" alt="Trees 1" title="Trees 1" src="/system/images/W1siZiIsIjIwMTQvMDkvMTkvMTIvNTAvNDUvODc1L3RyZWVzXzEuanBnIl0sWyJwIiwidGh1bWIiLCIyMjV4MjU1PiJdLFsicCIsInN0cmlwIl1d/trees-1.jpg" width="225" height="150" /></p>
<p>Many people like having large, mature trees on their property. Trees look nice, they create shade, and they add a little nature to urban communities. But have you ever thought about the potential liability that the trees on your property could cause?</p>
<p>Possible ways in which your trees could lead to liability include:</p>
<ul><li>Car Accidents</li>
<li><a title="Premises Liability Law" href="/practice-areas/personal-injurywrongful-death-law/premises-liability-law">Premises Liability Claims </a>
</li>
<li>Personal Injury Claims</li>
<li>Real Estate Litigation Claims</li>
<li>Property Damage Claims</li>
</ul>
<p>The main issue with trees is of course falling trees and limbs large enough to do damage. On the one hand, you might think it odd that you could be liable for something that happens regarding a tree's natural growth, which you don't have much control over. But you can be. If you have a tree that's diseased, that's been damaged by a storm, or is otherwise naturally growing in a manner that's creating a danger or intruding on a neighbor's property, you have an obligation to remedy the situation. Conversely, if your perfectly health tree falls or has a limb fall off during a storm, that'd be an act of nature and you probably wouldn't be liable for any resulting personal injuries or property damage.</p>
<p>As <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">Des Moines personal injury lawyers</a> and <a title="Car Accidents" href="/practice-areas/car-accidents">Des Moines car accident lawyers</a>, what we'd most commonly see is a limb, not necessarily an entire tree, that has fallen on someone or on a road, thus causing an accident, or perhaps a limb falls on a neighboring house or vehicle, leading to a property damage claim. Shorter trees can also grow out over roads and obstruct drivers' vision, increasing the chances of a car accident. You're possibly liable if that tree was on your property. The courts impose on you a duty to inspect your trees for signs of disease or other issues and fix them by trimming or removing limbs, or removing the entire tree if necessary. </p>
<p>A less common issue caused by large trees is the encroachment of tree roots on neighboring property. Since tree roots are commonly hidden, this is an issue that most people are unaware of until noticeable damage occurs. A common type of damage caused by encroaching tree roots is damage to structures, especially foundations, as the tree roots continue to grow and exert pressure against the unmoving structure.&#160; </p>
<p>Tree root issues are a difficult situation from a legal standpoint. Often, there's nothing much that can be done to stop the damage from continuing to occur short of removing the tree. But what about the damage the tree roots have already caused to the structure? That property owner can sue, but it's a tough claim to win. The courts' general policy is that people who choose to live in neighborhoods where mature trees are prevalent, both on their property and on neighbors', bear the risk of the natural problems that come with trees. Examples of natural problems include falling leaves, branches, and limbs, rodents and insects, and of course hidden tree roots that are expanding in ways that no one can see until it's too late.&#160;</p>
<p>About the only time that tree root/property damage claims are successful in <a title="Real Estate Litigation" href="/practice-areas/real-estate-litigation">Des Moines real estate litigation</a> cases is when the tree owner had notice that the tree roots were damaging someone else's property and refused to do anything about it. Tree root/property damage claims require proof of negligence. Negligence requires evidence that the tree owner knew or should have known that the tree's roots were damaging someone else's property. You can see how those claims are difficult to prove in the context of hidden tree roots until the roots actually begin causing visible damage. </p>Fri, 19 Sep 2014 12:47:00 +0000http://erbelaw.com/blog/posts/possible-liability-issues-regarding-trees
Bed Rails In Nursing Homes -- Helpful Or Killers?<p><img data-rel="225x255" alt="First Aid Kit 006" title="First Aid Kit 006" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMjUvNTUvNjU3L0ZpcnN0X2FpZF9raXRfMDA2LmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/First-aid-kit-006.jpg" width="225" height="135" /></p>
<p>Bed rails in nursing facilities can be as dangerous as they are helpful. Particularly for older, confused, or frail nursing home residents, injuries or death caused by bed rails frequently happen. As <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">Des Moines personal injury lawyers</a>, we’re aware that many nursing home residents have been seriously injured or have died because they became stuck between a bed rail and a bed frame or mattress. The nursing home resident can suffocate if they’re unable to free themselves or call for help.</p>
<p>Bed rails can serve two purposes in nursing facilities. Sometimes they’re used to help residents get up and out of bed. Bed rails can also be used to prevent residents from falling out of bed. But bed rails can also be dangerous, especially for the types of nursing facility residents described above. The greatest danger exists when the bed frame or mattress does not fit well with the bed frames. A gap between the mattress and the bed rail can result, sometimes large enough for a person to become stuck.</p>
<p>In 1985 the FDA published a Safety Alert on the risks of bed rail entrapment, among other parts of nursing home and hospital beds. As a result, bed rail manufacturers began selling safer bed rails. Yet, despite the FDA’s warnings and the statistics set forth below, the federal government has never issued any safety recalls of bed rails. </p>
<p>Since the FDA’s 1985 Safety Alert, the FDA has compiled statistics that demonstrate the hazards of bed rails to nursing facility residents. Between 1985 and 2008 there were 722 recorded incidents of nursing home residents strangled, entangled, trapped, or caught by bed rails. The potential risks of bed rails include:</p>
<ul><li>Bruising, cuts, and abrasions.</li>
<li>Using bed rails may lead to a patient becoming increasingly agitated if the rails are applied as a restraint.</li>
<li>In an effort to get over the rail, the patient may suffer serious injury if they lose their balance and fall.</li>
<li>For some patients the use of bed rails makes them feel unnecessarily restricted or isolated.</li>
<li>Being placed in bed rails can make it impossible for some older patients to perform routine activities without assistance. These may include getting something to eat or drink or going to the bathroom.</li>
<li>Bodily injury, suffocation, strangulation, or death. This may occur if part of the patient’s body is caught between the mattresses and bed rails.</li>
<li>Improper installation of bed rails.</li>
<li>Improper fit between bed rails and the mattress or bed frame.</li>
</ul>
<p>Because of such statistics and evidence, in 1999 the FDA, along with medical bed manufacturers, national healthcare organizations, patient advocacy groups, and other federal agencies, created the Hospital Bed Safety Workgroup (HBSW). The HBSW’s main accomplishment has been the production of a safety brochure for nursing facilities. The HBSW’s brochure offers guidelines for choosing a bed and directions on measuring for excessive and dangerous gaps between the bed rails and the mattress.&#160;</p>
<p>Please feel free to contact us if you need the assistance of a <a title="Nursing Home Injuries" href="/practice-areas/nursing-home-injuries">Des Moines nursing home injury lawyer</a>.</p>Tue, 16 Sep 2014 16:30:00 +0000http://erbelaw.com/blog/posts/bed-rails-in-nursing-homes-helpful-or-killers
Do Employer Security Screenings Count As "Working Time" Under Federal Overtime Law?<p><img data-rel="225x255" alt="Clock" title="Clock" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDUvMTAvNTkvODg1L2Nsb2NrLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/clock.jpg" width="225" height="207" /></p>
<p>During the October 2014 United States Supreme Court term the Court is expected to consider a new federal overtime law case. We’ll be monitoring it as part of our <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">Des Moines employment law</a> practice. The issue in the case, <em>Integrity Staffing Solutions v. Busk</em>, is whether time spent in pre-work or post-work security screenings is compensable working time that counts towards employees’ total weekly hours.&#160;</p>
<p>Federal courts of appeals have been divided on this question. Some have held that security screenings are not compensable working time. But in <em>Integrity Staffing Solutions</em> the Ninth Circuit Court of Appeals determined that post-work security screenings did have to be included as compensable working time.</p>
<p><em>Integrity Staffing Solutions</em> concerns overtime compensation claims pursued by former employees of Integrity Staffing Solutions. After clocking out at the end of each shift, Intergrity Staffing subjected the employees to a security screening intended to prevent employee theft. Just like any other security screening, the employees had to remove their wallets, belts, and keys before going through a metal detector. Employees sometimes waited as much as 25 minutes without pay during this security screening. </p>
<p>The legal question in <em>Integrity Staffing Solutions</em> is whether those security screenings were “integral and indispensable” to the employee’s principal work activities. Federal overtime law doesn’t require compensation for pre-work or post-work activities unless those activities are “integral and indispensable” to employees’ “principal activities” working for the employer. Federal overtime law defines this test as whether the employees’ activity is “necessary” to the employees’ principal work and done for the employer’s “benefit.” </p>
<p>As noted, some federal courts of appeals had previously determined that preliminary security screenings at the beginning of the workday do not count as compensable working time for purposes of <a title="Iowa Wage Law" href="/practice-areas/employment-labor-law/iowa-wage-law">wage and hour law</a>. But in <em>Integrity Staffing Solutions</em> the Ninth Circuit Court of Appeals took a different view, deciding that “the security screenings are necessary to employees’ primary work as warehouse employees and done for Integrity’s benefit,” thus satisfying the test summarized above and making the employees’ time spent in security screenings compensable working time. </p>
<p>The Ninth Circuit had a different view than other courts because Integrity Staffing’s security procedures existed because of the nature of the employees’ work. The security screening was intended to prevent employee theft. That concern that stemmed from the nature of the employees’ work, specifically, their access to customers’ merchandise that was stored in the facilities the employees were guarding. </p>
<p>In other cases in which security screenings did not constitute compensable working time, the security screenings were either required of everyone entering the facility, including visitors, or were required by federal law. Under the former scenario, requiring the security screenings of everyone, including visitors, eliminated any connection between the employees’ work and the security screening. In the latter situation, security inspections mandated by the federal government were not for the employer’s benefit. Either way, those situations failed to meet one of the two parts of the “integral and indispensable” described above. </p>
<p>Overtime cases require legal analysis of federal statutes, U.S. Department of Labor regulations, and court decisions. Please feel free to contact us if you need the assistance of a <a title="Overtime Law" href="/practice-areas/overtime-law">Des Moines overtime lawyer</a>.</p>Fri, 12 Sep 2014 12:40:00 +0000http://erbelaw.com/blog/posts/do-employer-security-screenings-count-as-working-time-under-federal-overtime-law
Dealing With Underinsured Motorists<p><img data-rel="225x255" alt="Car" title="Car" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMTcvNDYvMjU2L2Nhci5qcGciXSxbInAiLCJ0aHVtYiIsIjIyNXgyNTU%2BIl0sWyJwIiwic3RyaXAiXV0/car.jpg" width="170" height="255" /></p>
<p>As <a title="Car Accidents" href="/practice-areas/car-accidents">Des Moines car accident lawyers</a> we often encounter situations in which the at-fault driver has insurance coverage but the coverage is insufficient to fairly compensate our client for the client’s injuries and damages. Iowa’s motor vehicle responsibility law doesn’t require drivers to carry much insurance coverage – just $20,000 per person and $40,000 per accident. Even a minor car accident with no follow-up surgery can quickly lead to a claim in excess of $20,000. So what can you do if the other driver’s insurance is inadequate to fully cover your Des Moines personal injury law claim?</p>
<p>One option that might be available is to look to the driver’s money and property for extra recovery dollars. You aren’t limited to just the at-fault driver’s insurance coverage. You can also insist that the other driver provide compensation beyond the insurance coverage by giving you personal money or property. Of course, that option only works if the other driver has money or assets to add to the settlement pot.</p>
<p>Another possibility is to consider other possible defendants who may be partly responsible for the accident and your injuries. Is there possibly a second at-fault driver? Did a city or county fail to maintain the road or improperly design the road or its traffic signals? Perhaps, as we sometimes see as <a title="Dog Bite Law" href="/practice-areas/dog-bite-law">Des Moines dog bite lawyers</a>, a dog was roaming around at large and contributed to an accident that may create liability against the dog’s owner. </p>
<p>Notwithstanding those two options, the most common source of additional money when you’re injured by a driver with inadequate insurance coverage is your own underinsured motorist coverage through your car insurance company. I’ve discussed the details of undersinsured motorist coverage in an earlier <a target="_blank" title="http://erbelaw.wordpress.com/2011/05/09/uninsured-and-underinsured-motorist-insurance-coverage/" href="http://erbelaw.wordpress.com/2011/05/09/uninsured-and-underinsured-motorist-insurance-coverage/">blog entry</a>. There are also time limits for filing such claims, which I warned you about <a title="http://erbelaw.wordpress.com/2011/08/12/time-limits-for-filing-uninsuredunderinsured-motorist-claims/" href="http://erbelaw.wordpress.com/2011/08/12/time-limits-for-filing-uninsuredunderinsured-motorist-claims/">here</a>.</p>
<p>Underinsured motorist claims can be a minefield for the unwary. Not only do you have to read and comply with your insurance policy/contract regarding claim procedures and time limits, but then you possibly have to fight with your own insurance company over whether you’re legally entitled to recover damages from the accident and, if so, how much. The “legally entitled to recover” question doesn’t come up to often in underinsured motorist coverage cases, but the amount you’re entitled to recover is a common battleground and an area where the assistance of a <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">Des Moines personal injury lawyer</a> can be very helpful. Your insurance company essentially takes the place of the other driver in arguing with you about the amount of money that’ll be fair compensation for you.</p>
<p>One aspect of an underinsured motorist claim that you really have to be careful about is your policy’s “consent to settle” clause.&#160; Underinsured motorist policies require you to request and obtain your insurance company’s approval before you settle with the other driver. That sometimes involves your insurance company checking to see whether the at-fault driver has any money or assets that could be added to that driver’s settlement beyond the driver’s insurance coverage. Failure to obtain your insurance company’s consent to settle before settling with the at-fault driver may forfeit your rights to underinsured motorist coverage under your policy.</p>
<p>Underinsured motorist insurance claims are complicated matters that blend insurance law, contract law, and personal injury law in a unique way. To fully determine your legal rights you have to analyze your insurance policy, state statutory law, and state court law and apply all of that to the circumstances of your accident. That is not something that you should not undertake without an attorney. Please contact us if you need the assistance of a <a title="Insurance Law" href="/practice-areas/insurance-law">Des Moines insurance lawyer.</a>
</p>Wed, 10 Sep 2014 12:25:00 +0000http://erbelaw.com/blog/posts/dealing-with-underinsured-motorists
What Are Your Rights To Reinstatement After FMLA Leave?<p><img data-rel="225x255" alt="021749 Doctor Gp Medical Hospital Stethoscope Generic" title="021749 Doctor Gp Medical Hospital Stethoscope Generic" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDMvNTUvNTkvOTY3LzAyMTc0OV9kb2N0b3JfZ3BfbWVkaWNhbF9ob3NwaXRhbF9zdGV0aG9zY29wZV9nZW5lcmljLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/021749-doctor-gp-medical-hospital-stethoscope-generic.jpg" width="225" height="127" /></p>
<p>As <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">Des Moines employment lawyers</a> and <a title="Wrongful Termination Law" href="/practice-areas/employment-labor-law/wrongful-termination-law">Des Moines wrongful termination lawyers</a> we frequently handle cases arising under the Family and Medical Leave Act (FMLA).&#160; The FMLA includes more than just provisions for employee medical leave. The FMLA also governs what an employer must do when an employee returns from FMLA-covered leave.&#160; </p>
<p>In most instances, an employer is legally obligated to reinstate an employee who returns from FMLA leave. That includes reinstatement of all of the employee's benefits. The employee is supposed to return to the same position the employee held when the employee went on leave, or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment. An employee is entitled to such reinstatement even if the employee has been replaced or his or her position has been restructured to accommodate the employee's absence.
</p>
<p>The employee’s former position is simply the same position the employee held before going on leave. The tougher questions arises when the employer returns the employee to an equivalent position, rather than the same position.&#160; So what’s considered an equivalent position? A position is "equivalent" if it involves the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority. Courts consider the new position's pay, benefits, job duties, shift and schedule, and location when deciding whether a position is equivalent to the one the employee held before taking FMLA leave.
</p>
<p>As noted, employees sometimes do not have a right to reinstatement after FMLA leave. An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period. An employer must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment. For example, if a shift has been eliminated, or overtime has been decreased, an employee would not be entitled to return to work that shift or the original overtime hours upon restoration. But if a position on a certain shift has been filled by another employee, the returning employee is entitled to return to the same shift on which employed before taking FMLA leave.</p>
<p>A common exception to FMLA reinstatement arises when the employee's medical conditions prevents the performance of the essential functions of the job. If the employee is unable to perform an essential function of the position because of a physical or mental condition, including the continuation of a serious health condition or an injury or illness also covered by workers' compensation, the employee has no right to restoration to another position under the FMLA. But the employer have obligations to offer reasonable accommodations under state or federal <a title="Disability Discrimination Law" href="/practice-areas/employment-labor-law/disability-discrimination-law">disability discrimination law</a>.&#160;&#160;</p>
<p>Please fee free to contact us if you need the assistance of a <a title="Family And Medical Leave Act (FMLA) Law" href="/practice-areas/employment-labor-law/family-and-medical-leave-act-fmla-law">Des Moines FMLA lawyer</a>.</p>Fri, 05 Sep 2014 06:00:00 +0000http://erbelaw.com/blog/posts/what-are-your-rights-to-reinstatement-after-fmla-leave
Nursing Homes Can Be Dangerous Places<p><img data-rel="225x255" alt="021749 Doctor Gp Medical Hospital Stethoscope Generic" title="021749 Doctor Gp Medical Hospital Stethoscope Generic" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDMvNTUvNTkvOTY3LzAyMTc0OV9kb2N0b3JfZ3BfbWVkaWNhbF9ob3NwaXRhbF9zdGV0aG9zY29wZV9nZW5lcmljLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/021749-doctor-gp-medical-hospital-stethoscope-generic.jpg" width="225" height="127" /></p>
<p>As <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">Des Moines personal injury lawyers</a>, one thing we try to do is educate the public about certain dangers so that people don’t ever have to hire us. As our country continues to age and advancing medical science allows people to live longer, one area of increasing concern is the danger posed by many nursing home facilities. Just last week the Des Moines Register <a target="_blank" title="http://www.desmoinesregister.com/story/news/investigations/2014/08/29/madrid-home-lawsuit/14831819/" href="http://www.desmoinesregister.com/story/news/investigations/2014/08/29/madrid-home-lawsuit/14831819/">reported</a> on a death at the Madrid Home nursing facility. We represent another family in a personal injury and wrongful death lawsuit against Madrid Home as well.</p>
<p>A February 2014 report issued by the Office of Inspector General of the United States Department of Health and Human Services paints an alarming picture of the current state of skilled nursing care in this country.&#160; The study found that 33% of patients in skilled care nursing facilities were harmed during their stay, including infections and medication errors. Analysis of those patients' records caused investigators to conclude that 59% of the injuries and errors were preventable.</p>
<p>Most alarming, the study determined that 22% of patients suffered permanent harm, plus an additional 11% who were temporarily harmed. Worst of all, in 1.5% of the cases reviewed the patient died because of the poor treatment. These were people who'd been otherwise expected to live notwithstanding other physical or mental maladies they were suffering from.</p>
<p>The causes of the injuries and deaths varied. Common causes were failure to provide necessary medical care or delays in medical care, providing substandard medical treatment, and insufficient monitoring. The deaths involved problems such as preventable blood clots, fluid imbalances, excessive bleeding from blood-thinning medications, and kidney failure.</p>
<p>So what is the federal government doing about this problem? HHS's primary recommendation is that the Agency for Healthcare Research and Quality (AHRQ) and the Centers for Medicare &amp; Medicaid Services (CMS) should raise awareness of adverse events in nursing care and implement methods to promote nursing facility safety. That includes AHRQ and CMS collaborating to create and promote a list of potential nursing home adverse events, like those that the report found have injured and killed so many nursing home residents. &#160;Staff identification of resident harm is critical to the success of resident safety efforts, giving them the opportunity to correct problems and reduce harm as well as to report problems contributing to events. Therefore the government should ensure that nursing home staff are able to identify resident harm events to prevent harm or worsening. Nursing facilities should also be encouraged to report such events to patient safety organizations.&#160; </p>
<p>Health and Human Services also recommends that CMS should include potential events and information about resident harm in its quality guidance to nursing homes. And CMS should also instruct nursing home surveyors to review facility practices for identifying and reducing adverse events. In other words, what are nursing facilities doing to try to prevent these situations? Such steps might include instructing state survey agencies (like the Iowa Department of Inspections and Appeals) to include an assessment of adverse event identification and reduction in their compliance evaluations and connect related deficiencies specifically to resident safety practices.&#160;</p>
<p>Please feel free to contact us if you need the assistance of a <a title="Nursing Home Injuries" href="/practice-areas/nursing-home-injuries">Des Moines nursing home injury lawyer</a>.</p>Tue, 02 Sep 2014 06:00:00 +0000http://erbelaw.com/blog/posts/nursing-homes-can-be-dangerous-places
The Statistics Behind Dog Bite Attacks<p><img data-rel="225x255" alt="Snarling Dog E1360684279321" title="Snarling Dog E1360684279321" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvNDkvMTMvMjIyL3NuYXJsaW5nX2RvZ19lMTM2MDY4NDI3OTMyMS5qcGciXSxbInAiLCJ0aHVtYiIsIjIyNXgyNTU%2BIl0sWyJwIiwic3RyaXAiXV0/snarling-dog-e1360684279321.jpg" width="225" height="149" /></p>
<p>One type of <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">Des Moines personal injury law</a> case involves dog bites. The Centers for Disease Control reports that approximately 4.5 million people suffer dog bites each year.&#160; Half of those victims are children. 20% of reported dog bites cause personal injuries significant enough to require medical attention, more frequently among children than adults. Of special note is that some of those injuries, 27,000 for 2012 based upon most recent information, necessitated reconstructive surgery. Sadly, some of these attacks also result in the death of the dog bite victim. </p>
<p>So who are the hundreds of thousands of people being bitten each year? As noted, most of them are children, usually between ages 5 and 9.&#160; Adult males receive dog bites more often than adult females. More bites occur in rural areas than urban areas. And, unfortunately, the greatest danger of a dog bite is right at home. More dogs in a home means a greater potential for dog bites, especially compared to homes with no dogs at all.</p>
<p>Some dogs are more likely to attack humans than others. Studies of attack reports in the United States and Canada provide good data on the rates of attacks and deaths among various dog breeds. Not surprisingly given their fearsome reputation, pit bulls (including pit bull mixes) and rottweilers injure and kill more people than any other dog breed. It's not even close based on the statistics. The next closest breed for injuring people is bull mastiffs and the next closest for killing people are huskies. Of course, any breed of dog has the potential to bite and if you're the victim of that attack it won't matter whether it's an isolated or a common occurrence.</p>
<p>Steps can be taken to avoid dog attacks. If you see the dog before it attacks, the following precautions may help avoid an attack:</p>
<ul><li> Don't approach or touch a dog that’s eating, sleeping, playing with a toy, chewing on a bone, or caring for puppies. A dog bite is more likely if the dog's startled, frightened, feels like its personal space or items are being invaded, or caring for young.</li>
<li>Obviously, stay away from barking, growling, or scared dogs.</li>
<li>Don't pet unfamiliar dogs unless the owner or handler gives permission.&#160;&#160;</li>
<li>Don't try to pet dogs that are in a car or behind a fence.</li>
<li>Don't approach dogs that are at large, meaning that they are unleashed, out of their home or enclosure, and away from their owner or handler. If a loose dog approaches you, don't run or even try to move away. Stand still and avoid eye contact with the dog until it moves away.</li>
</ul>
<p>Sometimes dog attacks happen without warning and you have no chance to avoid them. At that point you need to do everything you can to defend yourself and try to avoid a serious, if not fatal, dog bite. If you have time before an attack, try to toss something at the dog to distract it and give it something else to bite, like a jacket, backpack, or anything that's not connected to you that you can afford to sacrifice. If the dog attacks you anyways, then you have no choice but to fight back and yell, hoping to scare it off before it does real damage. Aim for the dog's throat, nose, and the back of its head, using a weapon if you have one. Blunt force to those areas may stun the dog, temporarily stopping the attack and giving you a chance to escape. If the dog knocks you to the ground, you're in a very vulnerable position and need to guard vital areas like your face, throat, and chest by curling into a ball and covering up.&#160;</p>
<p>Please feel free to contact us if you need the assistance of a <a title="Dog Bite Law" href="/practice-areas/dog-bite-law">Des Moines dog bite lawyer</a>.</p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Fri, 29 Aug 2014 19:52:00 +0000http://erbelaw.com/blog/posts/the-statistics-behind-dog-bite-attacks
Iowa Court Of Appeals Allows Age Discrimination Case Against Judicial Branch To Proceed<p><img data-rel="225x255" alt="Financial Stress" title="Financial Stress" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMDMvMDYvNjk4L2ZpbmFuY2lhbF9zdHJlc3MuanBnIl0sWyJwIiwidGh1bWIiLCIyMjV4MjU1PiJdLFsicCIsInN0cmlwIl1d/financial-stress.jpg" width="225" height="169" /></p>
<p>On August 27, 2014 the Iowa Court of Appeals issued its decision in<em> Wyngarden v. Iowa Judicial Branch</em>. In that case Don Wyngarden claimed that the Iowa Judicial Branch had <a title="Employment Discrimination Law" href="/practice-areas/employment-labor-law/employment-discrimination-law">discriminated</a> against him because of his age. At issue were the motivations behind several disciplinary actions against him, including a suspension. Wyngarden claimed that the discipline was motivated by his age. The state countered that it had legitimate employment reasons for disciplining him.</p>
<p>The trial court dismissed the case before trial on the state's motion for summary judgment. The judge ruled that, among other things, Wyngarden could not prove age discrimination under any set of facts that he could conceivably prove at trial. Wyngarden appealed that decision.</p>
<p>Let me first note my strong opposition to the use of pretrial summary judgments to dispose of age discrimination and other types of employment discrimination claims. Those cases involve significant disputes concerning, in particular, what motivated employers to take certain employment actions against employees. Conclusions about an employer's motivations should be made only after a full trial on the merits of the case, not through a pretrial summary judgment decision by a judge who's usually only looking at a paper record and isn't supposed to be weighing the evidence and making credibility decisions about witnesses, matters that are only supposed to be decided at trial.</p>
<p>The Iowa Court of Appeals, while noting that summary judgment is not always improper in employment discrimination cases, agreed with Wyngarden that it was improper for the trial judge to decide the case on a pretrial motion for summary judgment. The court then applied two age discrimination tests to Wyngarden's claims to analyze whether his case should've survived summary judgment. Once test is called the "<em>Price Waterhouse</em>" test.&#160; The other is the "<em>McDonnell Douglas</em>" test. &#160;&#160;&#160;</p>
<p>Under the <em>Price Waterhouse </em>analysis, an age discrimination plaintiff must prove that age was a motivating or determining factor in the employer's decision. If the plaintiff successfully proves that element, an employer can only avoid a finding of liability by proving that it would have made the same decision even if it had not allowed age to play a role in the decision. Wyngarden pointed to statements made by his superiors that referenced retirement as evidence of age discrimination. The Iowa Court of Appeals agreed that such evidence was sufficient to create an issue for trial under the <em>Price Waterhouse</em> test: "When we consider those statements in light of the following: (1) the statements were made by decision makers during the disciplinary process, (2) the suspension occurred less than a year after the reprimand, and (3) numerous documents showed younger employees were not disciplined for engaging in the same action that lead to Wyngarden’s suspension, we conclude the record shows Wyngarden presented sufficient direct evidence of discrimination to raise a genuine issues of material fact under the Price Waterhouse standard."</p>
<p>The Iowa Court of Appeals also decided that Wyngarden had a claim under the alternative <em>McDonnell Douglas </em>test. Under the <em>McDonnell Douglas </em>analysis, an age discrimination plaintiff must first establish a "prima facie" case. The prima facie case requires proof that: (1) the plaintiff is a member of a protected class; (2) the plaintiff performed his or her work satisfactorily; and (3) the plaintiff suffered an adverse employment action. Once a plaintiff establishes a prima facie case of age discrimination, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for any adverse employment action against the plaintiff. If the employer meets that burden, the plaintiff must then present evidence sufficient to raise a question of material fact as to whether the employer's proffered reason was pretextual and to create a reasonable inference that age was a determinative factor in the adverse employment decision. The Iowa Court of Appeals concluded that there were fact issues for trial on all of those elements and that it was improper for the trial judge to dismiss the case on a summary judgment without a trial.</p>
<p>Please feel free to contact us if you need the assistance of a <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">Des Moines employment lawyer</a>. </p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Wed, 27 Aug 2014 14:01:00 +0000http://erbelaw.com/blog/posts/iowa-court-of-appeals-allows-age-discrimination-case-against-judicial-branch-to-proceed
Schools Are Not Immune From Liability For Injuries To Students On Field Trips<p><img data-rel="225x255" alt="First Aid Kit 006" title="First Aid Kit 006" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMjUvNTUvNjU3L0ZpcnN0X2FpZF9raXRfMDA2LmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/First-aid-kit-006.jpg" width="225" height="135" /></p>
<p>With school starting, parents will again be sending their children off on field trips. Part of that process involves the parents signing permission slips that often include language immunizing the school for any injuries to the child that occur during the field trip, including <a title="Car Accidents" href="/practice-areas/car-accidents">car accidents</a>, <a title="Drunk Driving Accidents" href="/practice-areas/car-accidents/drunk-driving-accidents">drunk driving accidents</a>, <a title="Trucking Accidents" href="/practice-areas/car-accidents/trucking-accidents">truck accidents</a>, <a title="Train And Railroad Accident Law" href="/practice-areas/personal-injurywrongful-death-law/train-and-railroad-accident-law--3">train accidents</a>, <a title="Pedestrian Accidents" href="/practice-areas/personal-injurywrongful-death-law/pedestrian-accidents">pedestrian accidents</a>, and <a title="Premises Liability Law" href="/practice-areas/personal-injurywrongful-death-law/premises-liability-law">premises liability</a> injuries. Luckily for the parents and the children who might be hurt, field trip liability waivers are invalid and unenforceable under Iowa law.&#160; </p>
<p>The Iowa Supreme Court disapproved of field trip liability waivers in the 2010 case of <em>Galloway v. State. </em>Fourteen-year-old Taneia Galloway attended a field trip to Milwaukee, Wisconsin, with Upward Bound, a youth outreach program organized by the University of Northern Iowa and the State of Iowa. On the field trip, Galloway was injured when she was struck by a car as she attempted to cross the street. Before leaving on the trip, Taneia's mother signed a form immunizing UNI from all possible personal injury liability. The trial court dismissed the family's personal injury lawsuit because it concluded that Taneia's mother had waived all liability claims when she signed that form.</p>
<p>On appeal the Iowa Supreme Court reversed and concluded that school field trip liability waivers are not valid or enforceable in Iowa. The court framed the issue as "whether public policy considerations should lead us to invalidate preinjury releases given by a parent purporting to waive her minor child's claim for personal injuries." It determined that school field trip liability waivers are unenforceable because they are contrary to Iowa's public policy.</p>
<p>Predictably, the court's primary concern was children and not the rights of parents and schools to voluntarily enter into contracts with each other. The court's chief worry was that parents would immunize schools from personal injury liability but then lack insurance or financial resources to pay for the child's medical care. "By signing a preinjury waiver, a parent purports to agree in advance to bear the financial burden of providing for her child in the event the child is injured by a tortfeasor's negligence. Sometimes parents are not willing or able to perform such commitments after an injury occurs. If parents fail to provide for the needs of their injured children, and the preinjury waiver in favor of the tortfeasor is enforced, financial demands may be made on the public fisc to cover the cost of care."&#160;</p>
<p>The court also noted the difference between holding adults responsible for the consequences of contracts they willingly sign that effect their personal interests and holding children responsible for a contract a parent signs that effects the child's interests. "While this court has found valid policy reasons supporting the rule allowing the enforcement of releases against adults who voluntarily, and in some cases foolishly, waive their own personal injury claims in advance of injury, we believe the strong public policy favoring the protection of vulnerable minor children demands a different rule here." Not only does the child neither have a chance to read nor even understand a liability waiver signed by the parent, but the child, not the parent, is the one who's facing the risk after the parent has signed away the child's legal rights to sue for personal injuries.</p>
<p>Please feel free to contact us if you need the assistance of a <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">Des Moines personal injury lawyer</a>.</p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Fri, 22 Aug 2014 06:00:00 +0000http://erbelaw.com/blog/posts/schools-are-not-immune-from-liability-for-injuries-to-students-on-field-trips
Avoiding A Collision At The Intersection Of SSDI Benefits And The ADA<p><img data-rel="225x255" alt="Handicap" title="Handicap" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDMvNTEvMTcvNzk4L0hhbmRpY2FwLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/Handicap.jpg" width="170" height="255" /></p>
<p>As a <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">Des Moines employment lawyer</a>, I often work with disabled individuals on disability discrimination claims. Oftentimes, they're unemployed because of their disability. The question thus naturally arises -- Should I apply for Social Security disability while my lawsuit's pending? That's a difficult question. Seeking Social Security disability benefits while suing under the Americans with Disabilities Act for disability discrimination is not easy. In fact, courts often conclude that the receipt of Social Security disability benefits prohibits that person from also suing under the ADA.</p>
<p> There’s a legal intersection between Social Security Disability Insurance (“SSDI”) and the Americans With Disabilities Act. They both help individuals with disabilities, but in different ways. SSDI provides monetary benefits to every insured individual who “is under a disability.” The ADA seeks to eliminate unwarranted discrimination against disabled individuals in order both to guarantee those individuals equal opportunity and to provide the United States with the benefit of their consequently increased productivity. But can the two legal claims collide at that intersection, thus eliminating your right to simultaneously pursue both?&#160;</p>
<p>That’s certainly possible because the proof necessary to succeed on an SSDI claim is often contradictory to that needed for an ADA claim. To recover SSDI benefits, a claimant needs to be unable to work for a period of time. To qualify for benefits, SSDI applicants must establish that their impairment prevents them from engaging in substantial gainful work for at least a period of twelve months. Conversely, the ADA presumes that the employee is ready, willing, and able to work, perhaps with a disability accommodation. Someone who’s totally unable to work, as SSDI applicants often are, will generally have a very difficult time succeeding on their ADA claim. Given that contradiction, courts can, but don’t have to, consider the receipt of SSDI benefits to act as a bar to an ADA claim.</p>
<p>Through 1999, several federal courts of appeals had determined that SSDI applicants or beneficiaries could not also pursue an ADA lawsuit against an employer. Those courts reasoned that an application for disability insurance is tantamount to an admission that the person cannot work. The inability to work, even after an employer provides a reasonable disability accommodation, usually eliminates the employee’s right to sue under the ADA.</p>
<p>That law changed in 1999, when the United States Supreme Court decided Cleveland v. Policy Management Systems Corporation and overruled the lower federal appellate courts on this point. The Cleveland court ruled that SSDI benefits aren’t necessarily indicative of the complete inability to work that would foreclose an ADA claim. The court reasoned that there could be circumstances under which SSDI benefits and an ADA claim could legally co-exist. Perhaps an employer denied a reasonable accommodation to a disabled employee. That employee could have remained employed with reasonable workplace accommodations, if the employer had provided them. Consequently, that hypothetical employee might have a legitimate ADA claim (because the employee could’ve remained working with a reasonable accommodation), while remaining eligible for SSDI benefits because continued employment is impossible under the employee’s current workplace conditions (no reasonable disability accommodation). </p>
<p>So if you’re suing under the ADA, you can still apply for SSDI, but you will have to explain that possible contradiction in court. Defense attorneys will pore over your SSDI materials to find anything you signed that indicates you’re unable to work and thus not eligible for protection under the ADA. Federal courts continue to dismiss ADA lawsuits if they conclude that the circumstances of an ADA plaintiff’s SSDI claim indicate a complete inability to work, even with a reasonable accommodation. Please feel free to contact us if you need the assistance of a
<a title="Disability Discrimination Law" href="/practice-areas/employment-labor-law/disability-discrimination-law">Des Moines disability discrimination lawyer</a>
. </p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Tue, 19 Aug 2014 06:00:00 +0000http://erbelaw.com/blog/posts/avoiding-a-collision-at-the-intersection-of-ssdi-benefits-and-the-ada
Franchisor Liability For Overtime Law Violations<p><img data-rel="225x255" alt="Clock" title="Clock" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDUvMTAvNTkvODg1L2Nsb2NrLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/clock.jpg" width="225" height="207" /></p>
<p>In a recent <a title="http://erbe-law-firm.herokuapp.com/blog/posts/mcdonald-s-is-not-loving-this-one-nlrb-says-mcdonald-s-is-a-joint-employer" href="http://erbe-law-firm.herokuapp.com/blog/posts/mcdonald-s-is-not-loving-this-one-nlrb-says-mcdonald-s-is-a-joint-employer">post</a> about <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">Des Moines employment law</a>, I discussed an NLRB legal opinion that indicated that the McDonald’s parent corporation may be liable for labor law claims against its franchise restaurants. I left for another time a discussion of how McDonald’s or other franchise parent corporations might be responsible for other employment law matters involving their franchise owners, such as overtime law, <a title="Iowa Wage Law" href="/practice-areas/employment-labor-law/iowa-wage-law">wage law</a>, or <a title="Wrongful Termination Law" href="/practice-areas/employment-labor-law/wrongful-termination-law">wrongful termination</a> cases. Two recent federal overtime law decisions have shed some light on how courts will view the franchisor liability question in the overtime context.&#160;</p>
<p>The cases were Orozco v. Plackis, an appellate decision by the United States Court of Appeals for the Fifth Circuit, and Olvera v. Bareburger Group, L.L.C., a federal trial court decision from New York. In both cases the courts based their decisions on the “economic reality” test that I reviewed in an earlier <a target="_blank" title="http://erbelaw.wordpress.com/2013/09/24/joint-versus-separate-employers-under-federal-overtime-law/" href="http://erbelaw.wordpress.com/2013/09/24/joint-versus-separate-employers-under-federal-overtime-law/">post</a> about joint employer liability under federal overtime law. Of course, as often happens, two courts applying the same law to separate factual situations reached different conclusions.</p>
<p>Orozco involved a pizza restaurant franchisor. The Fifth Circuit ruled that the parent franchisor company was not an employer of a cook at a franchisee’s restaurant who sued under the Fair Labor Standards Act for overtime and minimum wage violations. Using the economic reality test, the Fifth Circuit concluded that the franchisor had no authority to hire and fire the cook, set the cook’s schedule, or establish the cook’s pay rate. The Fifth Circuit also found no evidence that the franchise parent advised the franchisee on employment matters or maintained employment records for the franchisee. So the parent company wasn’t liable for any of the franchisee’s employment law issues.</p>
<p>On the other hand, the federal district court in Olvera ruled that a franchisor could be considered liable for wage violations at a franchisee’s restaurant location. The Olvera plaintiffs demonstrated that the restaurant and franchisor affiliates had sufficient control to establish the franchisor’s liability. The district court considered the fact that the franchisor assisted the franchisees with employee training, dictated certain payroll procedures and timekeeping methods, and tracked employees’ performance at the franchisee restaurants. The franchisor also exhibited significant control over the franchisee restaurants in other ways: establishing requirements for franchise operations, mandatory procedures for preparation of customer orders, setting wages, maintaining employee records, and assuming hiring and firing authority.&#160;</p>
<p>As I noted, these are specific decisions predicated on facts that are unique to each case. Although they’re useful for the discussions about the law applicable to potential franchisor liability under federal overtime law, they’re not very useful on a factual basis because each case will always have its own set of underlying facts. As the Fifth Circuit observed in Orozco, it did not “suggest that franchisors can never qualify as the FLSA employer for a franchisee’s employees; rather, we hold that Orozco failed to produce legally sufficient evidence to satisfy the economic reality test and thus failed to prove that Plackis was his employer under the FLSA.”</p>
<p>Overtime cases require legal analysis of federal statutes, U.S. Department of Labor regulations, and court decisions.&#160; Please feel free to contact us if you need the assistance of a <a title="Overtime Law" href="/practice-areas/overtime-law">Des Moines overtime lawyer</a>.</p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Fri, 15 Aug 2014 06:00:00 +0000http://erbelaw.com/blog/posts/franchisor-liability-for-overtime-law-violations
Nursing Home Liability For Personal Injuries And Wrongful Death<p><img data-rel="225x255" alt="021749 Doctor Gp Medical Hospital Stethoscope Generic" title="021749 Doctor Gp Medical Hospital Stethoscope Generic" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDMvNTUvNTkvOTY3LzAyMTc0OV9kb2N0b3JfZ3BfbWVkaWNhbF9ob3NwaXRhbF9zdGV0aG9zY29wZV9nZW5lcmljLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/021749-doctor-gp-medical-hospital-stethoscope-generic.jpg" height="127" width="225" /></p>
<p>One type of case that we handle as <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">Des Moines personal injury lawyers</a> is nursing home matters. It’s unfortunately shameful and common for nursing home residents to be injured and even killed because of a nursing home’s lack of care. These can be very emotionally charged cases because the resident and the resident’s family have placed their trust and faith in the nursing home, only to see that trust violated. But when that happens the nursing resident and the family have strong legal rights under Iowa law.</p>
<p>Common to all nursing home cases is the investigation conducted by the state or federal government after a nursing home resident’s death or injury. Under Iowa law, the Iowa Department of Inspections and Appeals investigates nursing home deaths and injuries and enforces the Iowa Administrative Code’s regulations for nursing homes. Iowa has a detailed set of administrative regulations that govern nursing homes’ relationships towards their residents, including topics such as patient safety and welfare. </p>
<p>If the Department of Inspections and Appeals determines that a nursing home has violated any of those rules, it can punish the facility through fines or other types of punishment. Those findings, and the Department’s investigatory report, can later be used in any personal injury or wrongful death claim against the facility. That can be a very powerful tool when confronting a nursing home over the death or injury of a resident.</p>
<p>There are three main categories of nursing home claims involving personal injury or wrongful death:</p>
<ul><li>Denial or failure of medical care.</li>
<li>Attacks by other residents or staff.</li>
<li>Failure to protect the resident from self-injury.</li>
</ul>
<p>I’ll summarize each in turn.</p>
<p>Denial or failure of medical care is essentially a medical malpractice claim against the nursing home. Many nursing home residents have their medical need attended to right on the premises. So Iowa’s basic medical malpractice law applies, as well as the additional medical care requirements that state and federal regulations impose, to medical care provided to the residents at the facility.</p>
<p>Attacks by other residents or staff could be considered a form of <a title="Premises Liability Law" href="/practice-areas/personal-injurywrongful-death-law/premises-liability-law">premises liability</a> claim as well. Nursing homes have a duty to protect residents from attacks or assaults by other residents or staff, just like any business has a legal obligation to protect visitors from attacks by third parties or employees. Plus there’s an added component for nursing home cases because state and federal regulations have strict rules about admitting and retaining dangerous patients and the hiring and retention of staff.</p>
<p>Failure to protect the resident from self-injury can cover both accidental and intentional resident self-harm. Accidental injuries would include such things as falls or choking while eating. Intentional injury usually refers only to suicide attempts, which do happen in care facilities. In the mid-1990s, a court awarded $100,000 to a surviving daughter in an Iowa nursing home case after the mother committed suicide while under the facility’s care. Just like with the other main categories of nursing home claims, state and federal regulations require nursing facilities to monitor and guard against patient self-harm whether it be accidental or intentional. </p>
<p>Please feel free to contact us if you need the assistance of a <a target="_blank" title="http://erbe-law-firm.herokuapp.com/practice-areas/nursing-home-injuries" href="http://erbe-law-firm.herokuapp.com/practice-areas/nursing-home-injuries">Des Moines nursing home injury lawyer</a>.</p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Tue, 12 Aug 2014 06:00:00 +0000http://erbelaw.com/blog/posts/nursing-home-liability-for-personal-injuries-and-wrongful-death
Quitting And Then Claiming Wrongful Termination Is Difficult<p><img data-rel="225x255" alt="Financial Stress" title="Financial Stress" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMDMvMDYvNjk4L2ZpbmFuY2lhbF9zdHJlc3MuanBnIl0sWyJwIiwidGh1bWIiLCIyMjV4MjU1PiJdLFsicCIsInN0cmlwIl1d/financial-stress.jpg" height="169" width="225" /></p>
<p>As a <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">Des Moines employment lawyer</a> I get contacted every week by folks seeking help with a <a title="Wrongful Termination Law" href="/practice-areas/employment-labor-law/wrongful-termination-law">wrongful termination</a>, <a title="Disability Discrimination Law" href="/practice-areas/employment-labor-law/disability-discrimination-law">disability discrimination</a>, or <a title="Employment Discrimination Law" href="/practice-areas/employment-labor-law/employment-discrimination-law">employment discrimination</a> case. As I've discussed on our website, wrongful termination rights (outside of the civil rights context) are fairly limited because of Iowa's at-will employment rule. But sometimes the person has made their situation even more difficult by quitting rather than getting fired. When you quit your job, you've added an extra layer to the wrongful termination analysis since now there will be an extra fight over whether you were even terminated, as opposed to voluntarily quitting. Unless the court determines that your quit was actually a "constructive discharge," you'll be barred from seeking wrongful termination damages because you were the one who terminated your employment, not your employer. Proving a constructive discharge under federal and state law is quite difficult. </p>
<p>To prove a constructive discharge under federal law, an employee must show that the employer deliberately created intolerable working conditions with the intention of forcing the employee to quit. In addition, the employee must give the employer a reasonable opportunity to resolve a problem before quitting. Employees have an obligation not to jump to the conclusion that the attempt at resolution will not work and that their only reasonable option is to quit. Employees have an obligation to be reasonable, not to assume the worst, and not to jump to conclusions too fast.</p>
<p>Evidence of an employer's intent to force an employee to quit can be offered through direct evidence or through evidence that the employer could have reasonably foreseen that the employee would quit as a result of its actions. The employer can render working conditions intolerable through inaction as well as action. The intolerability of working conditions is judged by an objective standard, not the employee's subjective feelings. Courts consider several factors in evaluating the working environment in constructive discharge cases: (1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4) reassignment to menial or degrading work; (5) reassignment to work under a younger supervisor; (6) badgering, harassment, or humiliation by the employer calculated to encourage the employee's resignation; or (7) offers of early retirement on terms that would make the employee worse off whether the offer was accepted or not.</p>
<p>Iowa applies a similar constructive discharge test. Constructive discharge exists when the employer deliberately makes an employee's working conditions so intolerable that the employee is forced into an involuntary resignation. To find constructive discharge, the fact finder, using an objective test, must conclude that working conditions would have been so difficult or unpleasant that a reasonable person in the employee's situation would be compelled to resign. </p>
<p>Generally, trivial, or isolated acts of the employer are not sufficient to support a constructive discharge claim. Instead, the working conditions must be unusually aggravated or amount to a continuous pattern before the situation will be deemed intolerable. Conditions will not be considered intolerable unless the employer has been given a reasonable chance to resolve the problem. </p>
<p>Constructive discharge claims most often arise in the civil rights context. But courts have applied the same principles in other general wrongful termination contexts, such as retaliation for filing a workers' compensation claim. The same standards would presumably
also apply to more specific legal areas, such as <a title="Family And Medical Leave Act (FMLA) Law" href="/practice-areas/employment-labor-law/family-and-medical-leave-act-fmla-law">Family and Medical
Leave Act</a> and <a title="Disability Discrimination Law" href="/practice-areas/employment-labor-law/disability-discrimination-law">disability discrimination</a> cases.</p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Fri, 08 Aug 2014 06:00:00 +0000http://erbelaw.com/blog/posts/quitting-and-then-claiming-wrongful-termination-is-difficult
The Slipknot/Daniel Baldi Wrongful Death Case -- Why Was It Dismissed?<p><img data-rel="225x255" alt="021749 Doctor Gp Medical Hospital Stethoscope Generic" title="021749 Doctor Gp Medical Hospital Stethoscope Generic" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDMvNTUvNTkvOTY3LzAyMTc0OV9kb2N0b3JfZ3BfbWVkaWNhbF9ob3NwaXRhbF9zdGV0aG9zY29wZV9nZW5lcmljLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/021749-doctor-gp-medical-hospital-stethoscope-generic.jpg" width="225" height="127" /></p>
<p>On July 28, 2014, a Polk County District Judge dismissed a wrongful death/medical malpractice lawsuit filed by the estate of Paul Gray against former Des Moines pain doctor Daniel Baldi. This decision was noteworthy because Dr. Baldi has faced criminal charges and continues to face civil lawsuits and licensing actions over allegations that he wrongly prescribed pain medications to his patients, including Paul Gray. Mr. Gray as famous for being a member of the Des Moines band Slipknot.</p>
<p>The Gray estate's lawsuit, which included claims for Mr. Gray's son, even though his son wasn't born at the time of his death, maintained that Mr. Gray's death occurred because of Dr. Baldi's actions as his pain doctor. The defense responded that the estate filed the lawsuit too late -- Mr. Gray died on May 24, 2010 but the estate didn't file suit until February 14, 2014, nearly four years later. The judge agreed with the state and dismissed the lawsuit on statute of limitations grounds.</p>
<p>The judge's decision was a based on Iowa's strict statute of limitations for medical malpractice actions. Iowa Code 614.1(9) provides a two-year time limit for wrongful death actions based on medical malpractice. Section 614.1(9) requires that suit be filed "within two years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of, the injury or death for which damages are sought in the action. . . .&#160; [I]n no event shall any action be brought more than six years after the date on which occurred the act or omission or occurrence alleged in the action to have been the cause of the injury or death unless a foreign object unintentionally left in the body caused the injury or death." Section 614.1(9) does not apply to other types of personal injury or wrongful death cases, such as <a title="Car Accidents" href="/practice-areas/car-accidents">car accidents</a>, <a title="Motorcycle Accident Law" href="/practice-areas/motorcycle-accident-law">motorcycle accidents</a>, <a title="Dog Bite Law" href="/practice-areas/dog-bite-law">dog bites</a>, <a title="Products Liability/Product Warranty Law" href="/practice-areas/products-liabilityproduct-warranty-law">products liability</a>, and <a title="Premises Liability Law" href="/practice-areas/personal-injurywrongful-death-law/premises-liability-law">premises liability</a> matters.&#160; </p>
<p>The Iowa Supreme Court has made clear that, in wrongful death cases arising out of medical malpractice, the two-year limitations period begins to run on the date that the death is discovered or the plaintiff should at least have known about the death. There is no requirement that the plaintiff have known that the death was "wrongful" or in any way the fault of any medical professionals. Rather, the fact of the death itself while the decedent is under medical care is sufficient to trigger the plaintiff's obligation to investigate the circumstances of that death to determine if any malpractice occurred, thus triggering the two-year limitations period.</p>
<p>Iowa Code 614.1(9)'s language is a departure from Iowa's general principles for statutes of limitations. Normally a person has to know or should know the cause of an injury or death before the statute of limitations begins to run. Mere knowledge that death or injury occurred is generally not enough to trigger the statute of limitations. In fact, the Iowa Supreme Court has recognized that regarding 614.1(9)'s application to personal injury cases that don't involve wrongful death. The Iowa Supreme Court has held that 614.1(9)'s two-year time limit doesn't begin to run in personal injury cases not involving wrongful death until the person knows or should know that the injury was caused by medical malpractice.&#160;</p>
<p>The Gray estate's case was dismissed because it filed the lawsuit more than two years after Mr. Gray's death, which was beyond 614.1(9)'s two-year time limit for medical malpractice actions involving wrongful death.&#160; his decision highlights the importance of having an attorney assist you with your personal injury or wrongful death case. Please contact Erbe Law Firm if you believe you have a possible personal injury or wrongful death case and might need the services of a <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">Des Moines personal injury lawyer</a>.<br /> </p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Tue, 05 Aug 2014 06:00:00 +0000http://erbelaw.com/blog/posts/the-slipknot-daniel-baldi-wrongful-death-case-why-was-it-dismissed
McDonald's Is Not Loving This One -- NLRB Says McDonald's Is A Joint Employer <p><img data-rel="225x255" alt="Clock" title="Clock" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDUvMTAvNTkvODg1L2Nsb2NrLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/clock.jpg" width="225" height="207" /></p>
<p>It's been a rough few years for Ronald and Co. McDonald's, once a place of happy meals and playgrounds, is coming under increasing fire for its employment law practices. For the most part, what we think of as "McDonald's," whose full corporate name is McDonald's, U.S.A., L.L.C., has deflected labor law criticism because its restaurants are run by franchisees under a franchise agreement, not by McDonald's, U.S.A., L.L.C. itself. That's allowed McDonald's to claim that any issues with labor relations or wages and overtime are individual restaurant responsibilities because McDonald's, as the franchisor, doesn't control such things on a day-to-day basis for its franchisee restaurants. But employees are beginning to make headway against that argument and successfully include McDonald's, U.S.A., L.L.C. itself in their employment law and labor law complaints.</p>
<p>The most recent blow to McDonald's came on July 29 when the National Labor Relations Board's Office of the General Counsel ("NLRB") issued an opinion that McDonald's was a "joint employer," along with the individual franchise owners, of its franchisees' employees. Since November 2012, 181 complaints have been filed against McDonald's with the NLRB. Those charges claim that McDonald’s franchisees and McDonald’s, U.S.A., L.L.C. violated the rights of employees as a result of activities surrounding employee protests. The NLRB complaints mostly concern the high-profile protests that have been conducted against McDonald's regarding its employee wage levels. The NLRB's counsel's decision means that in some cases McDonald's will be held liable for labor violations if a franchisee is found liable.&#160; </p>
<p> Despite the breathtaking pronouncements this week from both pro-employee and pro-employer sides, for a few reasons this NLRB counsel's opinion is not exactly an earth-shattering event. First, it's just a position statement by the NLRB's counsel, an argument that he'll make as part of the complaints he presents against McDonald's and its franchisees before the NLRB. No one's actually decided whether his argument is correct and he may eventually lose that argument. Second, any NLRB decision holding McDonald's liable for labor violations as a joint employer is subject to several levels of appeal and may be overturned at some point. Third, the NLRB's power is limited. It only considers matters arising under the National Labor Relations Act, just one law among many state and federal statutes and regulations that also govern employment law and are outside the NLRB's authority. Finally, and a related point, individual states are free to adopt their own rules regarding "joint employer" status under their individual state laws. The federal government, and especially not the NLRB, generally doesn't dictate how states implement their own state wage law and employment law statutes.</p>
<p>The Iowa Supreme Court considered a similar issue concerning McDonald's twenty years ago, but in the <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">personal injury</a> and <a title="Premises Liability Law" href="/practice-areas/personal-injurywrongful-death-law/premises-liability-law">premises liability</a> context. In the 1994 case of <em>Hoffnagle v. McDonald's Corp.</em>, the Iowa Supreme Court considered whether McDonald's was liable for an assault that occurred at one of its franchise restaurants. The court decided that McDonald's was not liable for injuries at one of its franchise restaurants: "The franchisee, the Mrozinskis, rather than the franchisor, McDonald's, has the power to control the details of the restaurant's day-to-day operation. The Mrozinskis own the business equipment, operate the business, hold the operating licenses and permits, determine the wages, and provide the basic daily training and insurance for the franchisee's employees. The Mrozinskis, not McDonald's, hire, fire, supervise and discipline the franchisee's employees. On the other hand, McDonald's simply has the authority to require the franchisee to adhere to the 'McDonald's system,' to adopt and use McDonald's business manuals, and to follow other general guidelines outlined by McDonald's."&#160; </p>
<p>It remains to be seen what impact, if any, a modification to the NLRB's "joint employer" rules will have on my work as a <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">Des Moines employment lawyer </a>and whether more franchisors will be included in employment law cases. For example, will my cases as a <a title="Wrongful Termination Law" href="/practice-areas/employment-labor-law/wrongful-termination-law">Des Moines wrongful termination lawyer</a> be expanded to include franchisors as well as their franchisees?&#160; </p>
<p>From an overtime law and wage law standpoint, I previously wrote about the <a title="http://erbelaw.wordpress.com/2013/09/24/joint-versus-separate-employers-under-federal-overtime-law/" href="http://erbelaw.wordpress.com/2013/09/24/joint-versus-separate-employers-under-federal-overtime-law/">joint employer rule</a> in those contexts. The current federal overtime rule issued by the U.S. Department of Labor for joint employment is not quite the same as the change that the NLRB's proposing. The Department of Labor could change its joint employer rule to reflect the NLRB's proposed changes, but that'd require the DOL to go through the time-consuming rulemaking process. Even if the DOL did make such a change, federal courts don't necessarily have to follow a DOL regulation and have discretion not to. The states certainly don't have to follow federal DOL regulations when applying their individual wage laws. &#160; &#160;&#160; </p>
<p>Please contact Erbe Law Firm if you need a <a title="Overtime Law" href="/practice-areas/overtime-law">Des Moines overtime law lawyer</a> or <a title="Iowa Wage Law" href="/practice-areas/employment-labor-law/iowa-wage-law">Des Moines wage law lawyer</a>. Overtime and wage cases require legal analysis of statutes, regulations, and court decisions. Please feel free to give us a call if there's anything we can help you with.</p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Fri, 01 Aug 2014 06:00:00 +0000http://erbelaw.com/blog/posts/mcdonald-s-is-not-loving-this-one-nlrb-says-mcdonald-s-is-a-joint-employer
Think Your Corporation Shields You From Personal Liability? Are You Sure About That?<p><img data-rel="225x255" alt="Office" title="Office" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDMvNDcvMzMvMjIyL09mZmljZS5qcGciXSxbInAiLCJ0aHVtYiIsIjIyNXgyNTU%2BIl0sWyJwIiwic3RyaXAiXV0/Office.jpg" width="170" height="255" /></p>
<p>One reason why people set up <a title="Business Practices &amp; Contract Law" href="/practice-areas/business-practices-contract-law">business entities</a> like corporations and limited liability companies is to shield themselves from personal liability if a legal claim is filed against the business. The general rule in Iowa is that officers, directors, shareholders, or members of a business entity are not personal liable for acts of <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">negligence</a> or other acts of wrongdoing committed by an employee or agent of the business. Only the business itself is normally liable, not any of the individuals associated with it. But there are exceptions to that general rule that allow for personal liability against individuals associated with a business.</p>
<p>In some instances under the "alter ego" theory or "piercing the corporate veil" theory, corporate shareholders can be held liable even for corporate acts that they were not involved in. That can happen in just about any type of case, including <a title="Motor Vehicle Accidents" href="/practice-areas/motor-vehicle-accidents">car accidents</a>, <a title="Motorcycle Accident Law" href="/practice-areas/motorcycle-accident-law">motorcycle accidents</a>, <a title="Products Liability/Product Warranty Law" href="/practice-areas/products-liabilityproduct-warranty-law">products liability</a> cases, <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">employment law</a> matters, and <a title="Construction Defect Law" href="/practice-areas/construction-defect-law">construction defect</a> cases. Let's look at the two theories.</p>
<p>Under the alter ego theory, a court will disregard a business entity that is merely an instrumentality or device set up to ensure the avoidance of legal obligations. A business entity is the alter ego of a person if (1) the person influences and governs the entity; (2) a unity of interest and ownership exists such that the business entity and the person cannot be separated; and (3) giving legal effect to the fictional separation between the business entity and the person would sanction a fraud or promote injustice. The "alter ego" theory is similar to and often analyzed together with the "piercing the corporate veil" theory.</p>
<p>Another method of disregarding the corporate entity is “piercing the corporate veil” of a corporation that is a mere shell, serving no legitimate business purpose, and used primarily as an intermediary to perpetuate fraud or promote injustice. Courts will look at several factors in deciding whether the protection from personal liability has been forfeited under the "piercing" theory. First, is the corporation adequately capitalized? Second, did the corporate participants follow corporate formalities? Third, did the corporation keep separate books?&#160; Fourth, were corporate finances kept separate from individual finances, or did the corporation pay individual obligations? Fifth, was the corporation used to promote fraud or illegality? Finally, was the corporation a mere sham? No one factor is determinative, and not all of them have to be present for a court to determine that personal liability for business acts is appropriate.</p>
<p>In certain types of cases (usually not contract or warranty claims though) there's another way to get around a business and directly at the people responsible for any wrongdoing. Business employees and agents are not immune from personal liability for their own wrongful acts. That includes actions that occurred while the agent or employee was acting within an official business capacity. Therefore, regardless of whether a business entity can be disregarded and personal liability imposed under the theories discussed above, business employees and agents cannot escape liability for any negligent or intentionally wrongful conduct that they were personally or directly involved in.</p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Tue, 29 Jul 2014 06:00:00 +0000http://erbelaw.com/blog/posts/think-your-corporation-shields-you-from-personal-liability-are-you-sure-about-that
A Wrongful Termination Case Study -- Smith v. Iowa State University<p><img data-rel="225x255" alt="Financial Stress" title="Financial Stress" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMDMvMDYvNjk4L2ZpbmFuY2lhbF9zdHJlc3MuanBnIl0sWyJwIiwidGh1bWIiLCIyMjV4MjU1PiJdLFsicCIsInN0cmlwIl1d/financial-stress.jpg" width="225" height="169" /></p>
<p>In an earlier blog <a title="http://erbelaw.com/blog/posts/causation-an-often-overlooked-element-in-wrongful-termination-cases" href="http://erbelaw.com/blog/posts/causation-an-often-overlooked-element-in-wrongful-termination-cases">post</a> I wrote about the necessity of proving "causation" in <a title="Wrongful Termination Law" href="/practice-areas/employment-labor-law/wrongful-termination-law">wrongful termination</a> cases. <em>Dennis Smith v. Iowa State University </em>is a recent high-profile <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">employment law</a> case from the Iowa Supreme Court in which a wrongful termination plaintiff failed to prove causation and consequently lost his case. So what went wrong for the <em>Smith </em>plaintiff? </p>
<p><em>Smith </em>was a special type of wrongful termination case brought under one of Iowa's whistleblowing statutes, which I wrote about <a target="_blank" title="http://erbelaw.wordpress.com/2012/10/08/whistleblower-protection-for-public-employees/" href="http://erbelaw.wordpress.com/2012/10/08/whistleblower-protection-for-public-employees/">here</a>. Mr. Smith reported the misappropriation of funds by an Iowa State employee. Smith was later terminated as part of a department reorganization. He claimed that his termination was in retaliation for his earlier whistleblowing. A jury agreed and Smith was awarded substantial damages for wrongful termination.</p>
<p>On appeal, first the Iowa Court of Appeals and then the Iowa Supreme Court concluded that Smith had not proved that his termination was connected to his whistleblowing activities, i.e., that Smith failed to prove causation. The Iowa Supreme Court noted that Iowa's public employee whistleblowing statute "requires that any adverse employment consequences have been in reprisal for protected conduct, and it was the district court’s job in calculating damages to determine exactly what those consequences were."&#160; </p>
<p>The fighting issue was whether Smith's termination was "in reprisal" for his whistleblowing, which the court believed consisted of reports to Iowa State University President Geoffrey concerning misappropriation of university funds by university employee. The Iowa Supreme Court determined it was not. The problem for the court was that there was no evidence that Smith suffered retaliation for reports of financial improprieties to President Geoffrey. The court found no proof that Smith’s loss of his job in the downsizing that occurred three years after his reports to President Geoffrey was a reprisal for those reports. One concern for the court was that much of the retaliatory conduct Smith alleged began before he made his reports to President Geoffrey, thus suggesting that any retaliatory conduct was for other reasons that preceded and were unrelated to those particular reports.&#160; </p>
<p>The court also found persuasive Iowa State's explanations for the downsizing of Smith's department and the decision to terminate him as part of that downsizing. Those explanations gave various legitimate business justifications for the loss of Smith's job that were unrelated to any attempt to retaliate against him. Also important was the fact that the employee against whom Smith had blown the whistle had resigned from Iowa State years before Smith was terminated and the person making the personnel decisions over Smith was new to the university and had not been there when the previous wrongdoing and reports of that wrongdoing occurred.&#160; </p>
<p>The court did not give any weight to Smith's counter testimony, which essentially consisted of personal opinions and speculation by other employees in Smith's department that the decisions seemed retaliatory. I'm sure the court viewed with some skepticism the notion that Iowa State would reorganize an entire department just so it could eliminate one troublemaker. In short, the court decided that "[w]e see no substantial evidence, or even a plausible argument, that his downsizing decision was made in 2010 to retaliate for Smith’s report to President Geoffroy’s executive assistant regarding Reinig in 2007. . .we cannot find that Smith’s loss of his job in 2010 was causally linked to his discussion with President Geoffroy’s executive assistant in 2007 regarding Reinig’s billing practices."</p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Fri, 25 Jul 2014 13:32:00 +0000http://erbelaw.com/blog/posts/a-wrongful-termination-case-study-smith-v-iowa-state-university
Damages For Breach Of Contract<p><img data-rel="225x255" alt="04 03 6 Shaking Hands Web" title="04 03 6 Shaking Hands Web" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDMvMDgvNTkvNDA5LzA0XzAzXzZfU2hha2luZ19oYW5kc193ZWIuanBnIl0sWyJwIiwidGh1bWIiLCIyMjV4MjU1PiJdLFsicCIsInN0cmlwIl1d/04_03_6---Shaking-hands_web.jpg" width="225" height="150" /></p>
<p>Contracts are everywhere. Your everyday affairs are probably governed by <a title="Business Practices &amp; Contract Law" href="/practice-areas/business-practices-contract-law">contractual agreements</a> that you don't even think about. Telephone, cable, loans, utilities, concert tickets, plane tickets, amusement park admission tickets, memberships to something on the internet, <a title="Motor Vehicle Accidents" href="/practice-areas/motor-vehicle-accidents">car insurance</a>, <a title="Insurance Law" href="/practice-areas/insurance-law">property insurance</a>, all are covered by contract language that you've agreed to and that binds both parties to the deal. Now let's say that prove that someone or something breached a contract with you. What are your potential legal remedies?</p>
<p>A party injured by a contract breach is generally entitled to be placed in as good a position as he or she would have occupied had the contract been performed. This type of damages is sometimes referred to as the injured party's "expectation interest" or "benefit of the bargain" damages. The nonbreaching party's recovery is limited to the loss the party has actually suffered by reason of the breach; the nonbreaching party is not entitled to be placed in a better position than it would have been in if the contract had not been broken.</p>
<p>Any damages awarded must relate to the nature and purpose of the contract itself. Damages cannot be speculative. Damages based on breach of a contract must have been foreseeable or have been contemplated by the parties when the parties entered into the agreement. Whether the damages were reasonably anticipated by the parties when the contract was formed may be discerned from the language of the contract in the light of the facts, including the nature and purpose of the contract and circumstances attending its execution. Damages that a reasonable person would expect to follow from breach of a contract are direct and thus should be awarded. Damages may also be considered foreseeable if they arise from the ordinary cause of events or as a result of special circumstances that the party in breach had reason to know.</p>
<p>Courts also look at the price of the contract in determining whether certain damages for breach of that contract are proper. A lack of proportion between the two numbers is an indication that the requested damages are improper. In other words, if a party is only be paid a small amount of money in exchange for its services under a contract, courts may take that as an indication that the small payment for services was not intended to expose that party to large financial risk if it breached the contract.</p>
<p>As you can tell, the law governing damages for breach of contract leaves much room for creativity because there are no hard-and-fast rules concerning what you can recover as damages and what you can't. For example, in a recent <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">employment law</a> decision the Iowa Court of Appeals allowed damages to a terminated employee who had to sell his home after his employment ended. He received damages for the mortgage, insurance, and real estate taxes he paid while waiting for the home to sell. The employee had a noncompete agreement, so when he quit his employment because the employer breached other aspects of the employment agreement, the employee had no choice but to sell his home and leave the area that was covered by the noncompete agreement. Thus, the employer's breach of the contract's compensation provisions, coupled with the noncompete agreement, not only forced the employee out of a job but also forced him to move, which made the related housing costs a legitimate item of damages for the employer's breach of contract.</p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Tue, 22 Jul 2014 06:00:00 +0000http://erbelaw.com/blog/posts/damages-for-breach-of-contract
Using Insurance Appraisals To Resolve Insurance Coverage Disputes<p><img data-rel="225x255" alt="Insurance 290x230" title="Insurance 290x230" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMTMvNDgvMzg0L2luc3VyYW5jZV8yOTB4MjMwLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/insurance-290x230.jpg" width="225" height="179" /></p>
<p><a title="Insurance Law" href="/practice-areas/insurance-law">Insurance policy coverage disputes</a> can be frustrating. Not only do you have to fight just to get the type of loss covered, but then sometimes you have to argue with your insurance company over the amount of the loss. There's not much you can do when coverage is completely denied except take that issue to court, but there's often a shorter process in your insurance policy, an "appraisal," for resolving issues over the amount of a covered loss.</p>
<p>It is not uncommon for an insurance policy to have an appraisal provision to resolve such disputes in lieu of more expensive and time-consuming legal action. An appraisal is a supplementary arrangement to arrive at a resolution of a dispute without a formal lawsuit. Provisions for appraisal of an insurance loss, whether under policy terms or pursuant to independent agreement, are valid and binding on the parties.&#160; </p>
<p>Although the language differs from policy to policy and the actual provisions for an appraisal will be governed by the policy's appraisal provision, generally an appraisal provision has been a method for an insurer and a policyholder to resolve a dispute of the amount of a covered loss. A typical appraisal clause in an insurance policy will require the insurer and the policyholder to each select a competent and impartial appraiser. The two appraisers then select an umpire. The appraisers then reach their respective conclusions about the amount of the loss. If they agree on the loss amount, then their joint decision is binding on the insurer and insured. If the appraisers can't agree, their dispute will be submitted to the umpire, who will decide which of the appraisers is correct. The umpire's decision in that regard is also binding on the insurer and policyholder.&#160; </p>
<p>What is the proper scope of appraisal in property insurance claims? Strictly read, your average appraisal provision only contemplates resolution of the amount of the loss. But courts are divided over whether more intensive questions, such as the cause of a loss that an insured contends is covered under the insurance policy. A growing trend among the courts is to allow the appraisal to include questions of not just the amount of a covered loss, but also whether the loss is covered under the insurance policy in the first place. </p>
<p>The Iowa Court of Appeals recently gave a preliminary answer to the question of whether an appraiser has the authority to determine causation or issues of coverage. That decision is preliminary because it may be subject to review by the Iowa Supreme Court, which may overrule the Court of Appeals. The Iowa Court of Appeals concluded that insurance appraisals can include a review of causation and whether an asserted loss is even covered under the terms of an insurance policy.</p>
<p>The Court of Appeals noted that as part of the appraisal process, appraisers must determine what the amount of “loss” is, which often requires consideration of causation. Loss means the financial detriment caused by damage, for which the insurer becomes liable. Causation is an integral part of the definition of loss, without consideration of which the appraisers cannot perform their assigned function. During the appraisal process, the appraisers must consider what caused the damage. Handling appraisals in any other manner would improperly limit the appraisal process to situations where the parties agree on all matters except the final dollar figure.</p>
<p>Once the appraisers conclude their work, the issue of coverage may be further litigated by the parties. Additionally, the causation determinations by the appraisers may be subject to further review by the district court. This process gives force to the appraisal process but reserves to the courts the authority to decide coverage questions.</p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Fri, 18 Jul 2014 06:00:00 +0000http://erbelaw.com/blog/posts/using-insurance-appraisals-to-resolve-insurance-coverage-disputes
Tracy Morgan Sues Over Truck Crash<p><img data-rel="225x255" alt="Truck" title="Truck" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMjIvMTAvMTgyL3RydWNrLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/truck.jpg" width="225" height="169" /></p>
<p>Tracy Morgan and the other victims of a fatal <a title="Trucking Accidents" href="/practice-areas/motor-vehicle-accidents/trucking-accidents">commercial truck versus vehicle crash</a> have filed suit against Walmart over the matter. Morgan was <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">critically injured and a passenger was killed</a> after a Walmart truck driven by Kevin Roper <a title="Motor Vehicle Accidents" href="/practice-areas/motor-vehicle-accidents">rearended the vehicle</a> they were traveling in. In an earlier <a target="_blank" title="http://www.erbelaw.com/blog/posts/federal-dot-rest-requirements-for-commerical-drivers" href="http://www.erbelaw.com/blog/posts/federal-dot-rest-requirements-for-commerical-drivers">blog post</a> I wrote about the issues concerning mandatory hours of service that are implicated by this case.&#160; </p>
<p>The lawsuit closely follows the National Transportation Safety Administration's ("NTSB") preliminary report on the accident, which provided additional details regarding the collision. According to the NTSB, traffic ahead of the Walmart truck and Morgan's vehicle had slowed because of construction work. Construction workers were performing maintenance on a large overhead sign a few miles ahead of the site of the crash. The right and center lanes of the freeway were closed in this area and a construction zone was marked. There was a sign a mile before the lane closures warning traffic about them. Half a mile before the crash location, the posted speed limit was reduced from 55 mph to 45 mph.</p>
<p>The NTSB noted that the Walmart truck was traveling at 60 mph shortly before the crash. A theory has emerged concerning why the truck driver was exceeding the posted construction zone speed limit by 20 mph -- He was close to exceeding the maximum hours limit and was racing to reach his destination to avoid fines and discipline. Federal law imposes a maximum 14-hour consecutive duty period for commercial motor vehicle drivers. The Walmart driver had logged 13 hours 32 minutes when the collision occurred. </p>
<p>The lawsuit notes that "Walmart has its own private fleet of trucks which comprises one of the largest transportation operations around the globe. The fleet consists of approximately 7,400 drivers, 80,000 associates in logistics, 6,121 tractors, 60,000 trailers, and 124 distribution centers. Walmart drivers drive over 713 million miles per year, making deliveries to over 4 million stores annually."&#160;&#160;</p>
<p>The lawsuit claims that "on the morning of June 6, 2014, Mr. Roper commuted from his home in Jonesboro, Georgia to the Wal-Mart facility in Smyrna, Delaware to commence his shift. Mr. Roper began his shift at approximately 11:22 a.m. on June 6, 2014."&#160; The complaint further repeats the details of the events that preceded the crash, as summarized above and first reported by the NTSB.</p>
<p>The lawsuit goes on to make serious allegations of negligence against Walmart. It maintains that Walmart knew or should have known that Mr. Roper was not in compliance with the maximum hours rules for commercial truck drivers. The lawsuit further asserts that Mr. Roper had been awake for more than 24 hours at the time of the crash and had fallen asleep behind the wheel shortly before the collision. Morgan's lawyers additionally question the amount of traveling that Mr. Roper had to do (over 700 miles) to get to his assigned delivery route.</p>
<p>Morgan's claims also suggest that important safety features in the truck weren't working. "[T]he Truck being operated by Mr. Roper was state-of-the-art, and equipped with sophisticated collision-avoidance systems all designed to begin automatically braking the truck when it senses slowing down traffic. However, the Truck did not automatically brake before the accident, and thus, Walmart knew or should have known that one of the truck's most important safety features was compromised."&#160;</p>
<p>The lawsuit concludes by making significant assertions about Walmart's general trucking practices. "Wal-Mart recklessly and intentionally engaged in a pattern and practice of having its drivers violating the F.M.S.C.A. Regulations. . . .&#160; Wal-Mart knew or should have known that its drivers were routinely working shifts longer than permitted under the F.M.C.S.A. Regulations, driving more hours per day than permitted under the F.M.S.C.A. Regulations, driving more consecutive hours without rest than permitted under the limits set forth in the F.M.S.C.A. Regulations, and working more hours per week than permitted under the F.M.S.C.A. Regulations. Wal-Mart not only failed to condemn, but condoned this practice of its drivers routinely violating the F.M.S.C.A. Regulations. Wal-Mart knew or should have known that its drivers were routinely fatigued--thus putting themselves and others on the road in danger--because in addition to working long shifts driving trucks, they regularly commuted hundreds of miles to get to work."</p>
<p>This case has the potential for significant damages, particularly for Tracy Morgan. Not only was he critically injured in the crash, but he has a high earning ability that will result in major economic damages. And, if the allegations about Walmart's general trucking practices are proved true, it faces a real possibility of a punitive damages award too.</p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Tue, 15 Jul 2014 06:00:00 +0000http://erbelaw.com/blog/posts/tracy-morgan-sues-over-truck-crash
Iowa Supreme Court Rules That Brand Name Drug Manufacturers Are Not Liable For Injuries Caused By Generic Equivalents<p><img data-rel="225x255" alt="021749 Doctor Gp Medical Hospital Stethoscope Generic" title="021749 Doctor Gp Medical Hospital Stethoscope Generic" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDMvNTUvNTkvOTY3LzAyMTc0OV9kb2N0b3JfZ3BfbWVkaWNhbF9ob3NwaXRhbF9zdGV0aG9zY29wZV9nZW5lcmljLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/021749-doctor-gp-medical-hospital-stethoscope-generic.jpg" width="225" height="127" /></p>
<p>On July 11, 2014, the Iowa Supreme Court issued a decision in<em> Theresa Huck v. Wyeth, Inc. </em>that follows the trend throughout the country prohibiting lawsuits against name brand drug manufacturers for <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">injuries or death</a> caused by a generic version of the drug manufactured by a different company. The plaintiffs in <em>Huck </em>sued under a <a title="Products Liability/Product Warranty Law" href="/practice-areas/products-liabilityproduct-warranty-law">products liability</a> theory for personal injuries. The prescription drug was a generic version; regardless, the plaintiffs sued both the manufacturer of the generic drug as well as the original name brand manufacturer. The plaintiff had never taken the name brand version of the drug; consequently, one of the issues in the case was whether a name brand drug manufacturer could be liable for injuries caused by the use of a generic version of the drug that it did not make. The Iowa Supreme Court's answer was no.&#160;
</p>
<p>The court relied on a well-settled aspect of Iowa products liability law law—The plaintiff must prove an injury caused by a product sold or supplied by the defendant. The court believed that this long-standing "product identification" requirement bars an injured plaintiff’s recovery from the manufacturers of a drug brand that the plaintiff never used. Thus, under Iowa law drug manufacturers only owe duties to those harmed by use of their products. The court declined to change Iowa law to impose a new duty on drug manufacturers to those who never used their products and were instead harmed by use of a competitor’s generic product.&#160; </p>
<p>In short, a name brand drug manufacturer does not owe a duty to a consumer unless the consumer actually used the brand manufacturer’s product. Brand manufacturers are not liable for injuries caused by a generic version of the drug. Plaintiffs seeking recovery for the side effects of a prescription drug who sue a pharmaceutical company must prove they were injured by using the prescription drug manufactured or supplied by that defendant.
</p>
<p>Why is this the case? There are a few reasons. First, as noted above, there's the standard rule that manufacturers are only responsible for injuries caused by their own products. Second, brand-name manufacturers’ warnings and representations do not create a basis for liability to consumers of competitors’ products because brand-name manufacturers only intend to communicate with their customers, not the customers of their competitors. Finally, public policy considerations weigh against holding name-brand competitors liable for injuries caused by their generic competitor’s drug.</p>
<p>The public policy concerns seem to be a major factor in this analysis. Due to the unique nature of the relationship between generic and brand manufacturers, to expand liability to those who did not make or supply the injury-causing product used by the plaintiff involves policy choices and social engineering more appropriate for the legislature. Congress has created a symbiotic relationship between brand and generic drug manufacturers. In this relationship, name brand manufacturers undertake the expense of developing pioneer drugs, performing the studies necessary to obtain premarketing approval, and formulating labeling information. Generic manufacturers avoid these expenses by duplicating successful pioneer drugs and their labels. Name brand advertising benefits generic competitors because generics are generally sold as substitutes for name brand drugs, so the more a name brand drug is prescribed, the more potential sales exist for its generic equivalents. As between these competing pharmaceutical companies, it would be unfair to find brand manufacturers have a duty to those who take generic drugs when the generic manufacturer reaps the benefits of the name brand manufacturer’s statements by copying its labels and riding on the coattails of its advertising.” Congress has thus made policy choices that impact the economics of prescription drug sales to increase access to medication.&#160; </p>
<p>The Iowa Supreme Court was also concerned that imposing liability on brand-name drug manufacturers even though a consumer wasn't injured by the name brand version would alter the relationship between generic and brand manufacturers. Extending liability to brand manufacturers for harm caused by generic competitors would discourage investments necessary to develop new, beneficial drugs by increasing the downside risks for the brand manufacturers. A brand manufacturer cannot ensure that a generic manufacturer complies with federal law. Brand name drug manufacturers do not place the generic product in commerce, have no ability to control the quality of the product or the conformance of the product with its design, and do not have the opportunity to treat the risk of producing the product as a cost of production against which liability insurance can be obtained.</p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Fri, 11 Jul 2014 13:35:00 +0000http://erbelaw.com/blog/posts/iowa-supreme-court-rules-that-brand-name-drug-manufacturers-are-not-liable-for-injuries-caused-by-generic-equivalents
The Exhaustion Of Administrative Remedies Requirement For Civil Rights Lawsuits<p><img data-rel="225x255" alt="Financial Stress" title="Financial Stress" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMDMvMDYvNjk4L2ZpbmFuY2lhbF9zdHJlc3MuanBnIl0sWyJwIiwidGh1bWIiLCIyMjV4MjU1PiJdLFsicCIsInN0cmlwIl1d/financial-stress.jpg" width="225" height="169" /></p>
<p>An important part of a civil rights claim is the <a target="_blank" title="http://erbelaw.wordpress.com/2011/08/24/the-role-of-civil-rights-investigators/" href="http://erbelaw.wordpress.com/2011/08/24/the-role-of-civil-rights-investigators/">administrative complaint</a>. Iowa civil rights claims are normally begun with a complaint through the Iowa Civil Rights Commission or the United States Equal Employment Opportunity Commission. You’re not allowed to sue for a civil rights violation under state or federal discrimination law, such as <a title="Employment Discrimination Law" href="/practice-areas/employment-labor-law/employment-discrimination-law">employment discrimination</a>, <a title="Disability Discrimination Law" href="/practice-areas/employment-labor-law/disability-discrimination-law">disability discrimination</a>, and some types of <a title="Wrongful Termination Law" href="/practice-areas/employment-labor-law/wrongful-termination-law">wrongful termination</a> claims, unless you first go through the <a target="_blank" title="http://erbelaw.wordpress.com/2011/10/24/time-limits-for-employment-civil-rights-claims/" href="http://erbelaw.wordpress.com/2011/10/24/time-limits-for-employment-civil-rights-claims/">administrative complaint process</a>.</p>
<p>This process is called “exhaustion of administrative remedies.” Any civil rights claims that you wish to bring in court must first be part of a civil rights complaint. Using a common example, if you want to claim that your employer retaliated against you and fired you because you objected to sex or race discrimination in the workplace, those claims need to be part of your civil rights complaint. You can’t bring just a few civil rights claims against your employer in your civil rights complaint and then add more civil rights claims when you file your lawsuit. You’re not allowed to go very much beyond the claims you asserted in your civil rights complaint.</p>
<p>This is not necessarily something that’s strictly scrutinized once you’re in court, but it is something that a court will review if an employer insists that you failed to exhaust your administrative remedies for a claim by not first bringing it as part of your civil rights complaint. Reasonably related acts may be considered exhausted, in addition to those that were specifically asserted in a civil rights complaint, so a later lawsuit does not have to mirror the administrative civil rights charges. Therefore, there is no requirement that a civil rights administrative complaint specifically allege the precise claim later included in the subsequent lawsuit. The administrative complaint need merely be sufficient to give the employer notice of the subject matter of the charge and identify generally the basis for a claim. Regardless, it’s better to err on the side of caution and ensure that you include in your civil rights administrative complaint all claims that you may later want to assert against your employer as part of a lawsuit.</p>
<p>There’s a special rule under Iowa law regarding the Iowa Civil Rights Act and the requirement that a civil rights plaintiff exhaust administrative remedies for any civil rights claim that’s later filed as part of a lawsuit. Iowa’s rule is that subsequent retaliatory conduct arising after an administrative complaint is filed, including termination, is automatically subsumed within an Iowa Civil Rights Act administrative complaint and need not be the subject of a new or amended complaint to meet exhaustion requirements. The timing of the retaliation is crucial in this analysis: if the alleged retaliation began before the filing of the administrative complaint, a subsequent suit for retaliation that was not brought to the attention to the administrative agency is barred. </p>
<p>One thing a court may consider when deciding an exhaustion of administrative remedies argument is whether you had a lawyer during the civil rights complaint process. Federal law instructs courts to not use the civil rights laws’ administrative procedures as a trap for civil rights plaintiffs who don’t have an attorney. When appropriate, courts construe pro se civil rights and discrimination claims charitably. Because discrimination complainants oftentimes file civil rights charges without legal assistance, courts must interpret administrative charges with the “utmost liberality” in order not to frustrate the civil rights laws’ remedial purposes of Title VII. But at the same time, courts are not permitted to invent a claim that simply was never asserted as part of the underlying administrative complaint.</p>
<p>Please feel free to contact us if you need the assistance of a <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">Des Moines employment lawyer</a>.</p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Tue, 08 Jul 2014 06:00:00 +0000http://erbelaw.com/blog/posts/the-exhaustion-of-administrative-remedies-requirement-for-civil-rights-lawsuits
New Federal Motor Carrier Safety Regulations Take Effect<p><img data-rel="225x255" alt="Truck" title="Truck" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMjIvMTAvMTgyL3RydWNrLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/truck.jpg" width="225" height="169" /></p>
<p>I have written before about the significant dangers posed by <a title="Trucking Accidents" href="/practice-areas/motor-vehicle-accidents/trucking-accidents">commercial trucks</a> on our roadways. While over-the-road trucking remains a vital part of our nation's economy, there are also many inherent dangers in having vehicles that large on the road with smaller trucks and cars. That dangers exists sometimes because of the nature of large commercial trucks themselves, like when they jackknife in bad weather or are toppled over by high winds. Other times <a title="Motor Vehicle Accidents" href="/practice-areas/motor-vehicle-accidents">accidents</a> are caused by truck driver error or negligence. An additional cause of trucking accidents that has recently received increased attention from the federal government is drivers' physical qualifications. &#160; </p>
<p>On May 21, 2014, the Federal Motor Carrier Safety Administration's ("FMCSA") National Registry of Certified Medical Examiners ("NRCME") went active. The NRCME is intended to increase federal medical regulation of commercial truck operators. The FMCSA's goal is to decrease the chances of trucking <a title="Motorcycle Accident Law" href="/practice-areas/motorcycle-accident-law">crashes</a> and related <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">injuries and death</a>. The National Transportation Safety Board believes that improper medical certification of commercial drivers has caused accidents. The NRCME rules include minimum requirements for medical staff who perform DOT physicals and minimum medical requirements for truck drivers’ certification, and man requirements for motor carriers verifying their drivers’ medical status, and goes into effect May 21, 2012. </p>
<p>The NRCME crystallizes and makes the DOT physical and medical certification process uniform throughout the country. It also sets minimum requirements for medical personnel who conduct physical examinations for interstate commercial and truck drivers. To issue a DOT medical certificate, the new rules mandate that medical staff must be either a doctor of medicine, doctor of osteopathy, doctor of chiropractic, physician’s assistant, advanced practice nurse, or any other medical professional authorized by the particular state’s law to perform physical examinations. And there are additional requirements: To be listed on the registry and therefore allowed to conduct commercial driver physicals, medical personnel must first pass a test regarding various aspects of the FMCSA's criteria. Certified medical examiners must be recertified every ten years.</p>
<p>Beginning May 21, 2014, all commercial drivers, including interstate truck drivers, are required to have medical certificates issued by a DOT certified and registered medical examiner. Medical staff are supposed to consistently and uniformly follow the DOT qualification standards for commercial driver physical examination. Commercial drivers who have a medical certificate issued before May 21, 2014 may continue to use that certificate until its expiration, at which time the driver will have to comply with the new rules and receive a new certification from a registered DOT medical examiner. </p>
<p>Commercial drivers and motor carriers subject to federal law can find registered examiners through the National Registry website. Commercial drivers will be issued a medical certification card when the pass the new medical examination. Commercial operators from Mexico and Canada are not bound by the new rules; their drivers’ licenses from their respective countries establish their medical qualification. </p>
<p>Commercial motor carriers must have an original copy of their commercial drivers’ short form medical certificate. Motor carrier employers do not have to obtain copies of their drivers’ Medical Examination Report (long form). Since May 21, 2014, motor carriers must confirm drivers’ medical certifications upon hiring or expiration of a medical examiner’s certificate by validating them against the medical examiner’s registration number. That verification must be noted in the drivers' qualification file.&#160;</p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Thu, 03 Jul 2014 06:00:00 +0000http://erbelaw.com/blog/posts/new-federal-motor-carrier-safety-regulations-take-effect
Iowa Supreme Court Begins Expanding Iowa Civil Rights Act's Disability Protections<p><img data-rel="225x255" alt="Handicap" title="Handicap" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDMvNTEvMTcvNzk4L0hhbmRpY2FwLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/Handicap.jpg" width="170" height="255" /></p>
<p>In an earlier <a target="_blank" title="http://erbelaw.wordpress.com/2013/11/12/regarded-as-or-perceived-disability-claims-under-the-americans-with-disabilities-act/" href="http://erbelaw.wordpress.com/2013/11/12/regarded-as-or-perceived-disability-claims-under-the-americans-with-disabilities-act/">blog post</a> I discussed how protections against were strengthened by the Americans with Disabilities Act Amendments Act (ADAAA) beginning January 1, 2009. The ADAAA expanded the concept of who's considered disabled under federal disability discrimination law. But Iowa has not similarly broadened the Iowa Civil Rights Act's (ICRA) disability discrimination provisions. It's thus been an open question whether the Iowa Supreme Court would expansively interpret the ICRA disability discrimination prohibition to mirror the current state of federal law.</p>
<p>The Iowa Supreme Court began answering that question in an <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">employment law</a> decision issued on June 27, 2014, <em>Goodpastor v. Schwan's Home Service, Inc</em>. That appeal concerned a lawsuit for disability discrimination and <a title="Wrongful Termination Law" href="/practice-areas/employment-labor-law/wrongful-termination-law">wrongful termination</a> of employment. One of the questions the court had to determine whether Goodpastor's multiple sclerosis is a disability contemplated by the Iowa Civil Rights Act.</p>
<p>&#160;In resolving that issue, the court for the first time addressed the ADAAA's impact on the ICRC's definition of disability. The court began by noting that the ICRA makes it “an unfair or discriminatory practice” to discharge an employee or otherwise discriminate against an employee “because of the . . . disability of such . . . employee.” Iowa Code § 216.6(1)(a). To prevail on a wrongful termination/disability discrimination claim under the ICRA, a plaintiff must initially prove (1) that the plaintiff has a disability; (2) that the plaintiff is qualified to perform the essential functions of the job; and (3) the circumstances of the termination raise an inference of illegal discrimination. So the first issue the court confronted was whether Goodpastor had a disability.</p>
<p>The ICRA defines a “disability” as “the physical or mental condition of a person which constitutes a substantial disability.” That definition encompasses any person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. The term “physical or mental impairment” means any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and endocrine. It also means any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. "Major life activities" are functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.</p>
<p>It was in determining whether Goodpastor's multiple sclerosis was a disability within Iowa's definition of "disabled" that the Iowa Supreme Court launched into a discussion of the ADAAA's impact on Iowa's disability discrimination law. On the one hand, the court observed that Iowa's courts are not bound to enforce federal law as that law is written. But on the other, the court also noted that it frequently looks to federal discrimination law to decide how to interpret Iowa's discrimination law. The court decided that, although it couldn't follow the letter of a federal statute in deciding what the ICRA meant, it could certainly use the spirit of that statute and other federal decisions that ascribe a broad meaning to the concept of "a person with a disability." Accordingly, the court concluded that multiple sclerosis can constitute a disability under the Iowa Act if the plaintiff produces evidence that the condition substantially impaired one or more major life activities during episodes or flare-ups, even if it did not impair life activities at all when in remission.</p>
<p>Please feel free to contact us if you need the assistance of a <a title="Disability Discrimination Law" href="/practice-areas/employment-labor-law/disability-discrimination-law">Des Moines disability discrimination lawyer</a>.</p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Tue, 01 Jul 2014 06:00:00 +0000http://erbelaw.com/blog/posts/iowa-supreme-court-begins-expanding-iowa-civil-rights-act-s-disability-protections
Takata Air Bag Safety Concerns Cause Vehicle Recalls<p><img data-rel="225x255" alt="Car" title="Car" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMTcvNDYvMjU2L2Nhci5qcGciXSxbInAiLCJ0aHVtYiIsIjIyNXgyNTU%2BIl0sWyJwIiwic3RyaXAiXV0/car.jpg" height="255" width="170" /></p>
<p>Air bags, among the most important safety components in vehicles, are increasingly becoming a major concern for automakers and regulators from a <a title="Products Liability/Product Warranty Law" href="/practice-areas/products-liabilityproduct-warranty-law">product liability</a> and safety standpoint. A global airbag recall is being broadened because of concerns that airbags in certain vehicles may spontaneously deploy and explode even though there is no <a title="Motor Vehicle Accidents" href="/practice-areas/motor-vehicle-accidents">car accident</a>, <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">injuring or killing</a> drivers and passengers. Toyota, Honda, Nissan, Mazda, Ford, Chrysler, and BMW have announced global recalls involving over three million vehicles because their air bags, manufactured by Takata Corporation, could rupture and send debris exploding into vehicles. This new round of recalls were generated by an investigation the National Highway Traffic Safety Administration (NHTSA) recently began after it received three complaints of injuries caused by the air bags. </p>
<p>Japan's Takata Corporation manufactured the airbags at the center of the vehicle recalls. The danger is that the airbags' inflators can possibly explode. Such an explosion can forcefully eject metal pieces into the vehicle's passenger compartment. The most serious risk occurs if the rupture occurs on the driver's side, where the metal shards are likely to explode straight at the driver after exiting the steering wheel. This issue, which has been known since at least 2007, has been associated with more than thirty injuries, some extremely serious and life-threatening, and two deaths. </p>
<p>Severe lacerations from sharp metal projectiles are not the only danger associated with these spontaneous explosions. Not only are the metal projectiles extremely dangerous by their very nature, but they are also extremely hot when they are ejected from the air bag assembly. Investigations after some spontaneous Takata airbag explosions have revealed that the metal shards are so hot at the time of the explosion that they can cause fires by striking areas inside the passenger compartment and burn skin, never mind merely lacerating it.</p>
<p>The vehicles that are part of the recall contain airbags that were manufactured between 2000 and 2002. Takata has admitted to U.S. safety investigators that the main cause of the safety issue was the handling and processing of the explosive material used to inflate Takata air bags at manufacturing plants in the United States and Mexico. Takata also acknowledges losing records related to that manufacturing process.</p>
<p>Takata Corporation has stated that it believes that excessive moisture was behind the defect. Similarly, Japanese regulatory officials suspect that moisture and humidity may be seeping inside the airbag inflators, which can destabilize the volatile propellant within the inflators. Takata has also acknowledged that it improperly stored chemicals and mishandled the manufacture of explosive propellants, used in the air bags, at its plant in Mexico.</p>
<p>NHTSA is continue to investigate the situation. “Based on the limited data available at this time, N.H.T.S.A. supports efforts by automakers to address the immediate risk in areas that have consistently hot, humid conditions over extended periods of time,” the agency said in a statement. Also, NHTSA, along with the seven vehicle manufacturers involved in the global recall, is conducting regional recall for the air bags in areas of high-humidity areas, such as Puerto Rico, the Virgin Islands, Hawaii, and Florida.</p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Fri, 27 Jun 2014 06:00:00 +0000http://erbelaw.com/blog/posts/takata-air-bag-safety-concerns-cause-vehicle-recalls
Congress Begins Trying To Limit Federal White Collar Overtime Exemptions<p><img data-rel="225x255" alt="Clock" title="Clock" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDUvMTAvNTkvODg1L2Nsb2NrLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/clock.jpg" width="225" height="207" /></p>
<p>In the wake of President Obama's Executive Order instructing the United States Department of Labor to "modernize and streamline" the agency’s "white collar" <a title="Overtime Law" href="/practice-areas/overtime-law">overtime</a> exemption regulations, which cover overtime rights of executive, administrative, professional, outside sales, and computer employees under the Fair Labor Standards Act (FLSA), the U.S. Senate has drafted legislation that's intended to implement President's Obama's directive. The Restoring Overtime Pay for Working Americans Act (S. 2486) would significantly increase the number of workers entitled to overtime compensation.</p>
<p>The legislation would increase the minimum salary thresholds for the executive, administrative, and professional employee exemptions. Over a three-year period, the weekly compensation minimum would be increased from $455 per week to $1,090 per week. After that point, the minimum salary requirements would be tied to inflation. The Senate's press release contends that the minimum salary level hasn't been properly set since 1975.&#160; </p>
<p>Likewise, the proposed law would increase from $100,000 to $125,000 the minimum annual salary requirement for the "highly-compensated employees" exemption. Under that exemption, a it's easier for employers to establish that well-paid employees are exempt and not entitled to overtime. That minimum salary requirement would be increased over three years and would also be tied to inflation. The highly-compensated workers exemption has only existed since 2004 and its $100,000 minimum salary requirement has not been increased to reflect inflation since that time.</p>
<p>Of significant importance, the proposed law would alter the “primary duty” test that governs the question of whether an employee’s duties are covered by a white collar overtime exemption. The "primary duties" is the main battleground in most overtime cases. The new bill would restore the 50% threshold, i.e., that employees not spend more than 50% of their weekly work hours performing nonexempt duties. As the press release on the legislation noted, “regulations issued in 2004 removed that 50 percent threshold, creating a loophole that allowed a worker to be exempt even if he or she only spends a few hours a week supervising or doing other exempt duties.” Under current Department of Labor regulations, a comparison of the amount of time an employee spends on exempt versus nonexempt work is important but is not necessarily determinative. Depending upon the presence or absence of other factors, employees can spend less than 50% or their work week engaged in exempt work yet still be considered exempt.
</p>
<p>So what does this mean? Nothing much, probably. The bill will have a hard time making it through the full Senate and has no chance of passage in the House. But it might bring public attention, as a corollary to the <a title="Iowa Wage Law" href="/practice-areas/employment-labor-law/iowa-wage-law">minimum wage</a> fight, to an area of real employer abuses in which employers bend over backwards to suppress labor costs by slapping an exemption label on as many employees as possible, even employees who make $30,000 a year and spend most of their time standing at a counter, helping customers and punching things into a cash register.&#160; </p>
<p>This bill might also cause the Department of Labor to exercise its rulemaking power and start proposing new white collar regulations (last updated in 2004), in line with the President's directive, and update those regulations to reflect the current realities of the workplace. The 2004 amendments, which eliminated the 50% primary duty threshold as discussed above, really messed things up. According to the Senate's press release, "[t]oday, only 12 percent of salaried workers are guaranteed overtime pay based on their salaries, compared to 65 percent in 1975."&#160; </p>
<p>The bill's sponsor, Senator Tom Harkin of Iowa, echoed the absurd state of affairs that is our current overtime pay system: "Every worker deserves a fair day’s pay for a hard day’s work, but because our overtime laws are out-of-date, Americans around the country who work long hours away from their families are denied a paycheck that reflects that work. That hurts their families and our economy. Plain and simple, if you have to work more, you should be paid more. Our legislation takes a commonsense approach to restoring overtime protections by making clear who should be eligible for overtime, while strengthening compliance provisions. Americans who work hard and play by the rules should be fairly compensated for a hard day’s work."</p>
<p>Overtime cases require legal analysis of federal statutes, U.S. Department of Labor regulations, and court decisions. I can help you with any <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">employment law or labor law</a> questions that you might have. Please feel free to contact me if there's an employment law or labor law matter I can help you with.</p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Tue, 24 Jun 2014 06:00:00 +0000http://erbelaw.com/blog/posts/congress-begins-trying-to-limit-federal-white-collar-overtime-exemptions
Can Politics And Private Nuisance Law Coexist? Iowa Supreme Court Says Yes<p><img data-rel="225x255" alt="Bigstockphoto Trucks And Warehouse 1129204" title="Bigstockphoto Trucks And Warehouse 1129204" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvNTQvMTYvOTI3L2JpZ3N0b2NrcGhvdG9fVHJ1Y2tzX0FuZF9XYXJlaG91c2VfMTEyOTIwNC5qcGciXSxbInAiLCJ0aHVtYiIsIjIyNXgyNTU%2BIl0sWyJwIiwic3RyaXAiXV0/bigstockphoto_Trucks_And_Warehouse_1129204.jpg" width="225" height="150" /></p>
<p>In <em>Freeman v. Grain Processing Corporation</em>, the Iowa Supreme Court confronted an argument that some types of <a title="Private Nuisance Law" href="/practice-areas/private-nuisance-law">private nuisance</a> actions are too political to be addressed in court. The plaintiffs, residents who lived nearby the defendant grain operation, claimed that the grain facility caused harmful pollutants and noxious odors to invade their land, thus diminishing the full use and enjoyment of their properties and also leading to possible <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">physical side effects</a>. One of the defendant's counterarguments was that this type of case, in which the residents essentially alleged an environmental damage claim under the guise of a private nuisance action, was too intertwined with state and federal environmental laws and regulations to be adequately addressed through a civil lawsuit. </p>
<p>The defendant's theory implicated the "political question" doctrine. Under the political question doctrine, the courts will occasionally, but not often and actually quite rarely, decline to consider a matter that is better left to the government to handle. Six factors are considered in deciding whether the political question doctrine prohibits a legal claim: (1) a textually demonstrable constitutional commitment of the issue to a coordinate political department; (2) a lack of judicially discoverable and manageable standards for resolving it; (3) the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; (4) the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; (5) an unusual need for unquestioning adherence to a political decision already made; or (6) the potentiality of embarrassment from multifarious pronouncements by various departments on one question.</p>
<p>The defendant grain operation maintained that that the case involved standard political questions. No judge or jury could decide the claims, according to the defendant, without balancing economic benefits against the harms caused by air pollution. It&#160; asserted that the balancing of interests is best left to the government. The defendant argued that allowing civil lawsuits for environmental pollution would amount to a collateral attack on the federal government's elaborate environmental rules system that will risk undermining the system’s clarity and legitimacy.</p>
<p>The Iowa Supreme Court disagreed that the political question doctrine prohibits environmental claims brought through civil lawsuits. It noted that there is no textual constitutional commitment of environmental issues to another branch of government. The court further ruled that this type of case was not too complex for the civil courts to handle. The law has devised a number of doctrinal approaches to accommodate difficulties in proof associated with complex environmental and toxic tort cases. Finally, the court observed that, unlike classic political questions that don't belong in the courts, there is no need for an initial policy determination by another branch of government.</p>
<p>As a side note, it's interesting that the Iowa Supreme Court is not inclined to apply the political question doctrine in any type of case in which the remedy sought is money damages, including private nuisance actions. Actions for damages are relatively immune to efforts to dismiss based upon the political question doctrine. Monetary damages might but typically do not require courts to dictate policy, nor do they constitute a form of relief that is not judicially manageable. Plaintiffs seeking money damages are not trying to establish standards that conflict with legislative determinations; rather, they are seeking compensation for injuries.</p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Fri, 20 Jun 2014 06:00:00 +0000http://erbelaw.com/blog/posts/can-politics-and-private-nuisance-law-coexist-iowa-supreme-court-says-yes
Do Employers Have To Accommodate Service Animals In The Workplace?<p><img data-rel="225x255" alt="Handicap" title="Handicap" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDMvNTEvMTcvNzk4L0hhbmRpY2FwLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/Handicap.jpg" width="170" height="255" /></p>
<p>I've previously written about federal laws regarding service animals (usually dogs) on <a target="_blank" title="http://erbelaw.wordpress.com/2013/09/10/service-animals-on-commercial-air-flights/" href="http://erbelaw.wordpress.com/2013/09/10/service-animals-on-commercial-air-flights/">airplanes</a> and in <a target="_blank" title="http://erbelaw.wordpress.com/2013/09/20/service-animals-in-public-places-when-must-they-be-accommodated/" href="http://erbelaw.wordpress.com/2013/09/20/service-animals-in-public-places-when-must-they-be-accommodated/">public places</a>. A different set of Americans With Disabilities Act (ADA) rules govern this question concerning <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">private workplaces</a>. You might be surprised to learn that neither the ADA nor the United States Department of Labor's interpretive regulations include special provisions concerning service animals.&#160; </p>
<p>Service animals are treated like any other reasonable accommodation under federal disability discrimination law. Therefore employers are not automatically required to allow employees to bring service animals to the workplace. The are no bright-line rules regarding service animals; rather, each situation is decided on a case-by-case basis. The difficulties caused by the ad hoc approach are amplified by the lack of specific service animal guidance for the ADA's employment provisions.&#160; </p>
<p>As always, the threshold issue concerns the definition of "service animal." The ADA's employment accommodation provisions do not define "service animal." That possibly allows for a wider range of types of service animals than would be permitted under other federal laws. An interesting question that'll likely arise with increasing frequency is whether therapy, companion, and therapy animals, animals that don't provide physical guidance, support, and stability, can be considered a reasonable accommodation that employers might have to honor.</p>
<p>Once an animal is determined to be a service animal, an employer must decide whether to permit a disabled employee to use the animal at work. That decision (unless it's an outright grant of permission) should include an interactive process in which the employer an employee discuss the employee's needs and the employer's concerns about having the animal at the workplace. Employers don't have to permit a service animal in the workplace if the animal's not needed because of a disability or if it is disruptive. Employers should allow the service animal unless doing so would result in an undue hardship.</p>
<p>As part of the interactive process, the ADA gives employers the right to request documentation that a reasonable accommodation is needed.&#160; So when an employee asks for permission to bring a service animal to the workplace, the employer may request documentation or a demonstration of the necessity of the service animal, that the animal is properly trained, and that the animal will not be disruptive. The interactive process's purpose is to give the employer an understanding as to why the service animal is necessary and how it helps the disabled employee.</p>
<p>Please feel free to contact us if you need the assistance of a <a title="Disability Discrimination Law" href="/practice-areas/employment-labor-law/disability-discrimination-law">Des Moines disability discrimination lawyer</a>.</p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Tue, 17 Jun 2014 06:00:00 +0000http://erbelaw.com/blog/posts/do-employers-have-to-accommodate-service-animals-in-the-workplace
Iowa Supreme Court Rules That Private Landowners May Be Liable For Failure To Maintain Public Sidewalks <p><img data-rel="225x255" alt="Showhomegeo" title="Showhomegeo" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDUvMjAvMjIvMzkyL3Nob3dob21lZ2VvLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/showhomegeo.jpg" width="225" height="150" /></p>
<p>On June 13, 2014 the Iowa Supreme Court issued a <a title="Premises Liability Law" href="/practice-areas/personal-injurywrongful-death-law/premises-liability-law">premises liability</a> decision that has the potential to significantly expand private landowners' liability for<a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law"> injuries</a> caused by adjoining defective sidewalks. In that case, <em>Madden v. City of Iowa City and State of Iowa</em>, Beth Madden was hurt when she fell off her bicycle while riding on a sidewalk that adjoined the University of Iowa's campus. She sued Iowa City, alleging that it failed to properly maintain the sidewalk in a safe condition. Iowa City in turn added the State of Iowa, responsible for the University of Iowa campus, under an Iowa City ordinance that requires abutting property owners to maintain sidewalks in a safe condition and provides that “[t]he abutting property owner may be liable for damages caused by failure to maintain the sidewalk.” The primary issue in the case was whether Iowa law recognizes such a sidewalk maintenance duty for adjoining landowners.</p>
<p>The court began its discussion by noting the general rule that an abutting property owner is not liable for an injury that resulted from a defective sidewalk. There are two exceptions to that common rule. First, liability can be imposed when the owners of property abutting the public sidewalk contribute to or cause the dangerous condition. Second, liability can also be imposed if the sidewalk was constructed in a special manner for the benefit of the abutting landowner. Because of that general rule, usually a statute or ordinance that merely imposes a duty to maintain a sidewalk in good repair does not pass liability for damages onto the abutting landowner. The theory behind the general no-liability rule is that a requirement that abutting property owners maintain sidewalks is for the benefit of the municipality, not pedestrians.</p>
<p>Notwithstanding the usual rule, an ordinance or statute that expressly makes an abutting landowner liable for damages by a defective sidewalk (like Iowa City's ordinance) may lead to property owner liability. Thus, the court stated that "the central question in this case is whether the express damages provision in the Iowa City ordinance may be validly enforced against the State." The court determined that Iowa City's ordinance was valid.</p>
<p>The court applied the Iowa Constitution's home rule for Iowa municipalities. Under the home-rule approach, except for taxing authority, municipalities ordinarily have the power to determine local affairs as they see fit unless the legislature has provided otherwise. The court concluded that nothing in the Iowa Code prohibited Iowa City from enacting a statute that subjected property owners to money damages for failing to maintain adjoining public sidewalks.&#160;</p>
<p>This decision has significant possible consequences. It means that cities can enact ordinances that pass the burden of money damages for public sidewalk accidents onto adjoining landowners. So every time a <a title="Bicycle Accidents" href="/practice-areas/personal-injurywrongful-death-law/bicycle-accidents">bicyclist</a> or <a title="Pedestrian Accidents" href="/practice-areas/personal-injurywrongful-death-law/pedestrian-accidents">pedestrian</a> is injured because of a poorly maintained public sidewalk, the adjoining landowner may be exposed to liability for money damages.&#160; </p>
<p>That goes well beyond the state of Iowa law before the <em>Madden</em> decision. It used to be that property owners who failed to maintain adjacent public sidewalks would simply get a bill from the city for any necessary repairs. Money damages were only possible if the accident was caused by a failure to remove snow or ice. But now property owners who fail to undertake complicated and perhaps expensive repairs to a public sidewalk, which is traditionally a city's role, may get a bill from the city <em>and</em> a money judgment against them. That's really asking a lot of property owners, much more than the simple act clearing public sidewalks of ice and snow.</p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Fri, 13 Jun 2014 18:48:00 +0000http://erbelaw.com/blog/posts/iowa-supreme-court-rules-that-private-landowners-may-be-liable-for-failure-to-maintain-public-sidewalks
Federal DOT Rest Requirements For Commerical Drivers<p><img data-rel="225x255" alt="Truck" title="Truck" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMjIvMTAvMTgyL3RydWNrLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/truck.jpg" width="225" height="169" /></p>
<p>The recent <a title="Trucking Accidents" href="/practice-areas/motor-vehicle-accidents/trucking-accidents">fatal trucking accident</a> that <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">critically injured</a> comedian Tracy Morgan is a stark reminder of the tremendous danger posed by large commercial vehicles. It'll also likely serve to generate another discussion about fatigued commercial vehicle operators. News reports indicate that the driver of the Walmart truck that slammed into the back of Morgan's limousine had been awake for 24 straight hours. If true, that's a significant violation of United States Department of Transportation hours-of-service regulations.</p>
<p>Commercial driver fatigue is a leading cause of <a title="Motor Vehicle Accidents" href="/practice-areas/motor-vehicle-accidents">commercial vehicle crashes</a>. The DOT has thus issued commercial driver regulations (most recently updated on July 1, 2013) that restrict when and for how long commercial operators may drive. The regulations' purpose is to ensure that commercial drivers remain awake and alert while operating their vehicles. When the DOT issued the most recent version of the hours-of-service regulations, it estimated that the regulations would save nineteen lives and prevent approximately 1,400 crashes and 560 injuries per year. </p>
<p>The DOT amended its hours-of-service regulations because new research demonstrated that breaks from driving reduce the risk of accidents in the time immediately after the break, with off-duty breaks creating the largest increase in safety. The benefits of driving breaks ranged from a thirty- to fifty-percent reduction in risk, with off-duty breaks accounting for the higher end of that range. </p>
<p>The hours-of-service regulations differentiate between commercial drivers that carry property (like an 18-wheeler hauling cargo) and commercial drivers that carry passengers (like tour bus). Property drivers are forbidden from driving more than eleven hours without rest, and only if they've been off duty for at least ten consecutive hours. Further, property drivers may drive only if eight hours or less have passed since end of their last off-duty or sleeper berth period of at least thirty minutes. There's a maximum amount of hours over a set period of days for property drivers -- They can't exceed sixty hours of driving in a seven-day period or seventy hours of driving in an eight-day period. A driver can begin a new seven- or eight-day period after taking at least 34 consecutive hours off duty.</p>
<p>Passenger drivers may drive a maximum of ten hours after eight consecutive hours off duty. They may not drive after having been on duty for fifteen hours, following eight consecutive hours off duty. Passenger drivers have the same 60/70 weekly hours-of-service limits as property drivers. </p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Tue, 10 Jun 2014 20:26:00 +0000http://erbelaw.com/blog/posts/federal-dot-rest-requirements-for-commerical-drivers
Airline Flight Crew Employees And The FMLA<p><img data-rel="225x255" alt="021749 Doctor Gp Medical Hospital Stethoscope Generic" title="021749 Doctor Gp Medical Hospital Stethoscope Generic" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDMvNTUvNTkvOTY3LzAyMTc0OV9kb2N0b3JfZ3BfbWVkaWNhbF9ob3NwaXRhbF9zdGV0aG9zY29wZV9nZW5lcmljLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/021749-doctor-gp-medical-hospital-stethoscope-generic.jpg" width="225" height="127" /></p>
<p>Special <a title="Family And Medical Leave Act (FMLA) Law" href="/practice-areas/employment-labor-law/family-and-medical-leave-act-fmla-law">FMLA</a> rules apply to airline flight crew employees. Those special rules govern the areas of FMLA eligibility, calculating FMLA leave, and maintaining records. Other than those special rules, airline flight crew employees are governed by the remainder of the FMLA's requirements, just like other FMLA-eligible employees.&#160;</p>
<p>Under the FMLA, an airline flight crew employee is an airline flight crewmember or flight attendant. Not every airline employee will be covered by the FMLA's special rules for airline flight crew employees. For example, employees who work in ticketing or on the ground crew, but do not actually fly in a plane as an employee, would be outside the scope of the special rules.</p>
<p> Like other employees, airline flight crew employees must meet an hours-of-service requirement over a twelve-month period to be covered by the FMLA. There are two requirements regarding airline flight crew members' hours of service:&#160; (1) the employee must have worked or been paid for not less than 60 percent of the employee’s applicable monthly guarantee; and (2) worked or been paid for at least 504 hours. "Hours worked" worked means the employee’s duty hours during the twelve-month period. "Hours paid" means the number of hours for which an employee received wages during the twelve-month period.&#160; </p>
<p>Airline flight crew employees may use FMLA leave for the same purposes as other types of employees:&#160; </p>
<ul><li> for the birth of a child or placement of a child for adoption or foster care</li>
<li> to care for the employee’s spouse, son, daughter, or parent with a serious health condition</li>
<li> for the employee’s own serious health condition</li>
<li> for any qualifying exigency arising out of the fact that a spouse, son, daughter, or parent is a military member on covered active duty</li>
</ul>
<p>Airline flight crew employees are entitled to up to 72 days of FMLA leave during a rolling twelve-month period.</p>
<p>FMLA cases require legal analysis of federal statutes, U.S. Department of Labor regulations, and court decisions. I can help you with any <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">employment law or labor law</a> questions that you might have. Please feel free to contact me if there's an employment law or labor law matter I can help you with.</p>
<a href="https://plus.google.com/114747319374395522401/posts?rel=author">By Harley Erbe</a>Fri, 06 Jun 2014 11:23:00 +0000http://erbelaw.com/blog/posts/airline-flight-crew-employees-and-the-fmla
Lawsuits Claim That Johnson & Johnson Talcum Powder Causes Ovarian Cancer<p><img data-rel="225x255" alt="021749 Doctor Gp Medical Hospital Stethoscope Generic" title="021749 Doctor Gp Medical Hospital Stethoscope Generic" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDMvNTUvNTkvOTY3LzAyMTc0OV9kb2N0b3JfZ3BfbWVkaWNhbF9ob3NwaXRhbF9zdGV0aG9zY29wZV9nZW5lcmljLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/021749-doctor-gp-medical-hospital-stethoscope-generic.jpg" width="225" height="127" /></p>
<p>Legal trouble confronts Johnson &amp; Johnson regarding its talcum powder products. A pending California class action lawsuit maintains that Johnson’s Baby Powder and the company's other baby powder products can cause a greater risk of ovarian cancer. The California class action contends that Johnson &amp; Johnson has known for at least thirty years that its talcum baby powder products were linked to a higher risk of ovarian cancer, but <a title="Products Liability/Product Warranty Law" href="/practice-areas/products-liabilityproduct-warranty-law">failed to warn consumers about the danger. </a>
</p>
<p>Studies indicate that talcum powder can contribute to ovarian cancer if talcum particles enter the body through the vagina. One report showed that women who often use talcum powder for feminine hygiene may have a 41% increase in their risk of developing ovarian cancer. Yet talcum powder remains on the market unregulated and without sufficient warnings about all of its risks. The labels on Johnson &amp; Johnson’s baby powder products do contain some warnings, such as keeping the powder away from eyes, avoid inhaling the powder, and that it's for external use only. But the product labels include no warning about the increased risk of ovarian cancer. </p>
<p>The first study of Johnson &amp; Johnson’s talcum powder and ovarian cancer was completed in 1971. That research of ovarian cancer patients demonstrated talc particles in their ovarian tissues. After the 1971 report, numerous other studies suggested a link between talc and ovarian cancer. A 1992 study concluded that frequent use of baby powder tripled ovarian cancer risk. The American Cancer Society refers to a 2008 report that found a likely increased cancer risk from the use of talcum products. A 2010 Harvard report likewise warned that talc in baby powder was a human carcinogen. </p>
<p>Johnson &amp; Johnson's baby powder problems increased last year. A baby powder/cancer lawsuit was won for the first time in 2013. A federal jury determined that talcum contained in some Johnson &amp; Johnson powders <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">contributed to a woman’s ovarian cancer</a>. The victim in that case used Johnson &amp; Johnson's talcum products for thirty years. She was diagnosed with ovarian cancer in 2006. The jury concluded that Johnson &amp; Johnson did not warn consumers of a connection between the use of talc-based powder and a greater ovarian cancer risk.
</p>
<p>The California class action lawsuit against Johnson &amp; Johnson was filed on April 29, 2014. Interestingly, the lawsuit does not yet include personal injury claims because the plaintiff has not developed ovarian cancer. Instead, the class action is focused on <a title="Business Practices &amp; Contract Law" href="/practice-areas/business-practices-contract-law">fraud</a> -- that the plaintiff would not have purchased Johnson &amp; Johnson talcum products had she known of the ovarian cancer risk. But cases like the California class action and the federal jury verdict have a tendency to increase the level of risk for the product manufacturer as more and more plaintiffs file suit.&#160; </p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Tue, 03 Jun 2014 06:00:00 +0000http://erbelaw.com/blog/posts/lawsuits-claim-that-johnson-johnson-talcum-powder-causes-ovarian-cancer
Working At The Car Wash, Working At The Car Wash, Yeah -- Car Wash Employees Present A Minefield Of Potential Employment Issues <p><img data-rel="225x255" alt="Clock" title="Clock" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDUvMTAvNTkvODg1L2Nsb2NrLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/clock.jpg" width="225" height="207" /></p>
<p>Employees of car wash establishments are usually covered by the minimum wage and <a title="Overtime Law" href="/practice-areas/overtime-law">overtime provisions</a> of the federal Fair Labor Standards Act (FLSA). Therefore car wash employees have to be paid minimum wage per applicable state and federal minimum wage statutes. If the employer classifies its car wash employees as tipped workers and accordingly reduces their guaranteed minimum wage rate it has to be careful to comply with the special <a target="_blank" title="http://erbelaw.wordpress.com/2012/04/30/treatment-of-tipped-employees-under-minimum-wage-laws/" href="http://erbelaw.wordpress.com/2012/04/30/treatment-of-tipped-employees-under-minimum-wage-laws/">minimum wage rules for tipped workers</a> under state and federal law.</p>
<p>Car washes are one of those business that present tricky overtime questions. The employer may classify some of its employees as exempt management, but are those employees truly exempt and not entitled to overtime? There's also a lot of standing around and waiting at car washes -- Is the employer properly counting as working time all of the employees' working time that should be counted as such? Additional information about these and other overtime issues that may confront car wash establishments is available on our Overtime Law page.</p>
<p>Another overtime pitfall for car wash businesses is classifying employees as “independent contractors” and therefore not treating them as “employees” who would be covered by the FLSA. This is an area where, unfortunately, many businesses intentionally misclassify their employees as independent contractors in an attempt to avoid the mandates of the FLSA's minimum wage and overtime requirements and many other state and federal laws. Many such laws only apply to or protect employees and offer nothing for independent contractors. So this is an important issue for employment rights.</p>
<p>Independent contractors are people who perform services for but are not an employee of the person or business utilizing the services.&#160; There's a lot of gray area in determining whether someone is an independent contractor. That's why many employers mistakenly classify their employees as independent contractors or intentionally do so in the hope that they can later argue their way around the issue. In general, a person's potential independent contractor status is evaluated by considering whether the individual is economically dependent upon the person or business utilizing the services. If the individual is economically dependent upon that person then that individual is an employee. The determination of independent contractor status depends on various factors, such as:</p>
<ul><li> The nature and degree of the alleged employer's control as to the manner in which the work is performed;</li>
<li>The alleged employee's opportunity for profit or loss depending upon his/her managerial skill;</li>
<li>The alleged employee's investment in equipment or materials required for the task, or the alleged employee's employment of other workers;</li>
<li>Whether the services rendered by the alleged employee require special skill;</li>
<li>The degree of permanency and duration of the working relationship;</li>
<li>The extent to which the services rendered by the alleged employee are in integral part of the alleged employer's business.</li>
</ul>
<p>Overtime cases require legal analysis of federal statutes, U.S. Department of Labor regulations, and court decisions. I can help you with any <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">employment law or labor law</a> questions that you might have. Please feel free to contact me if there's an employment law or labor law matter I can help you with.</p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Fri, 30 May 2014 12:22:00 +0000http://erbelaw.com/blog/posts/working-at-the-car-wash-working-at-the-car-wash-yeah-car-wash-employees-present-a-minefield-of-potential-employment-issues
Potholes And Motorcycles -- A Match Made In Hell<p><img data-rel="225x255" alt="Motorcycle" title="Motorcycle" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDUvMTQvNDgvMzgzL21vdG9yY3ljbGUuanBnIl0sWyJwIiwidGh1bWIiLCIyMjV4MjU1PiJdLFsicCIsInN0cmlwIl1d/motorcycle.jpg" width="225" height="149" /></p>
<p>Although Memorial Day is the unofficial start of summer, the extended winter weather has put cities and counties behind in their annual spring road maintenance. So there's still many potholes out there on the road, more than you'd usually see at the end of May. Potholes can seemingly come out of nowhere, especially in traffic when the vehicles in front of you are breaking up your view of the road surface.&#160; </p>
<p>Potholes are often no more than an earth-shaking irritation to cars and trucks. A car or <a title="Trucking Accidents" href="/practice-areas/motor-vehicle-accidents/trucking-accidents">truck</a> hits a pothole and there might be some underbody damage, a damaged tire, or an alignment that gets thrown out of whack. But potholes can kill motorcycle riders. We are especially vulnerable to them even a minor pothole can throw a rider off balance, possible causing a loss of control and a subsequent accident. A deep pothole can directly cause a <a title="Motorcycle Accident Law" href="/practice-areas/motorcycle-accident-law">motorcycle to crash</a>. If going to the ground doesn't seriously <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">injure or kill</a> the rider, there's the follow-up risk of lying in the road while <a title="Motor Vehicle Accidents" href="/practice-areas/motor-vehicle-accidents">traffic bears down</a>. All and all not a good situation to be in. </p>
<p>So how can motorcycle riders protect themselves from potholes? The most obvious alternative is of course to avoid them. Watch your speed when you first begin riding in the spring, especially in traffic when your view of the road immediately in front of you may be broken up by other vehicles. Don't assume that a route that was clear the year or even the day before hasn't had a new pothole develop. And don't assume that a puddle of water is just a puddle; it could be a deeper pool of water that's concealing a pothole. Do your best to steer around potholes when you see them, assuming that you can do so safely without losing control or veering into oncoming traffic or the curb.</p>
<p>If hitting a pothole is unavoidable (because it's too large or came upon you too fast to safely avoid it), try to slow down as safely as possible so that your tires follow the road surface into the pothole and back out without causing a loss of control or separation of the tires from the road surface. And confront the pothole straight on -- swerving at the last second may result in your bike entering the pothole with the handlebars at an angle, which is likely to cause a crash when the tires enter the pothole. Just go straight into the hole and straight out of it.</p>
<p>Some motorcycle safety resources and instructors also advocate that, shortly before hitting the pothole, riders stand up slightly with their knees bent on the front pegs pegs so that your legs and knees will act as shock absorbers. Motorcycle safety resources also suggest that the rider accelerate slightly and smoothly upon entering the pothole, which is meant to shift the rider's weight on the bike and transfer it from the front tire to the rear tire. The key is slight and smooth acceleration, not a panicked wrenching of the throttle because hitting a pothole at higher speeds will frequently send the rider and the bike to the ground.</p>
<p>Finally, even if you make it through an encounter with a pothole relatively unscathed, you should still have your bike looked at. You should check for damage to the tires or the rims. You might also have to have your forks and suspension checked out too.</p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Tue, 27 May 2014 06:00:00 +0000http://erbelaw.com/blog/posts/potholes-and-motorcycles-a-match-made-in-hell
When Can You Sue For Invasion Of Privacy?<p>A seldom used, but legitimate, <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">personal injury</a> claim is available for certain types of privacy invasions.&#160; Such claims frequently arise in the <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">employment context</a>.&#160; A person found liable for invading someone else's privacy can be made to pay compensatory damages for emotional distress and even punitive damages.<br /> </p>
<p>The Iowa Supreme Court has observed that the right to privacy “exemplifies the possessive and territorial view of privacy.”&#160; Conduct that intrudes on privacy gives rise to liability because it can cause a reasonable person mental suffering, shame, or humiliation inconsistent with the general rules of civility and personal autonomy recognized in our society.&#160; Privacy rights protect against acts that interfere with a person's mental well-being and intentionally expose the person when he or she is in an area where privacy would normally be expected.&#160; </p>
<p> Iowa recognizes four types of invasion of privacy: (1) unreasonable intrusion upon the seclusion of another; (2) appropriation of the another's name or likeness; (3) unreasonable publicity given to another's private life; and (4) publicity that unreasonably places the other in a false light before the public. These four distinct forms of privacy invasion each represent an interference with the plaintiff's right to be left alone.&#160; Importantly, the cause of action for invasion of privacy imposes liability based on a particular method of obtaining information, not the content of the information obtained, or even the use put to the information by the intruder following the intrusion.&#160; Thus, proof that information obtained through an intrusion has been distributed to third parties is not required. </p>
<p>The first privacy invasion claim noted above, "unreasonable intrusion upon seclusion," is the most frequently asserted privacy claim.&#160; This form of invasion of privacy generally requires the plaintiff to establish two elements.&#160; The first element requires an intentional intrusion into a matter in which the plaintiff has a right to expect privacy.&#160; The second element requires the intrusive act to be highly offensive to a reasonable person.&#160; </p>
<p> So what types of “intrusion” will support an invasion of privacy claim?&#160; There is no set definition, but examples of types of intrusive conduct can be drawn from various legal authorities.&#160; These examples include photographs or video of people in places where they'd expect privacy, such as bathrooms, hospital rooms, and bedrooms.&#160; Another common type of intrusion is unauthorized recording or listening in on private conversations, such as telephone taps.&#160; A guiding principle is that an offensive intrusion justifying an invasion of privacy claim occurs when the defendant performs an act that had the potential to impair a person's peace of mind and comfort associated with the expectation of privacy.&#160; Note that there need only be a potential, not an actual, intrusion.</p>
<p> Although a mere potential intrusion is sufficient to support a claim for invasion of privacy, there's an important exception to that applies to video and audio recording technology:&#160; A belief by a plaintiff that a person invaded his or her privacy by placing an apparent recording device in a private area does not establish an intrusion if the device was not capable of being configured or operated to transmit or record in any conceivable way.&#160; Consequently, in video and audio recording privacy cases, the plaintiff must additionally prove that the equipment was functional and actually capable of creating the potential for an offensive intrusion at the time the plaintiff believes that the intrusion occurred.&#160; </p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Fri, 23 May 2014 06:00:00 +0000http://erbelaw.com/blog/posts/when-can-you-sue-for-invasion-of-privacy
An Expanded Look At Iowa's Uninsured Motorist Coverage Law<p><img data-rel="225x255" alt="Insurance 290x230" title="Insurance 290x230" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMTMvNDgvMzg0L2luc3VyYW5jZV8yOTB4MjMwLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/insurance-290x230.jpg" height="179" width="225" /></p>
<p>Not all vehicle owners comply with Iowa's financial responsibility law, which requires liability insurance of a certain amount for all motor vehicles.&#160; If you're in a <a title="Motor Vehicle Accidents" href="/practice-areas/motor-vehicle-accidents">car accident</a>, <a title="Trucking Accidents" href="/practice-areas/motor-vehicle-accidents/trucking-accidents">truck accident</a>, <a title="Drunk Driving Accidents" href="/practice-areas/motor-vehicle-accidents/drunk-driving-accidents">drunk driving accident</a>, or <a title="Motorcycle Accident Law" href="/practice-areas/motorcycle-accident-law">motorcycle accident</a> with an uninsured vehicle, there may be no money available to pay monetary compensation for your <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">personal injuries or a loved one's wrongful death</a> unless the vehicle owner has sufficient assets to cover the damages. &#160; Otherwise, you're only possible recovery will be through the <a title="Insurance Law" href="/practice-areas/insurance-law">uninsured motorist coverage</a> on your vehicle, if you have insurance on the vehicle.&#160; Iowa law mandates that your motor vehicle insurance coverage include a minimal amount of uninsured motorist coverage, although you can receive greater coverage in exchange for higher premiums if you choose. &#160; Our earlier discussion of uninsured and underinsured motorist coverage can be found <a title="http://erbelaw.wordpress.com/2011/05/09/uninsured-and-underinsured-motorist-insurance-coverage/" href="http://erbelaw.wordpress.com/2011/05/09/uninsured-and-underinsured-motorist-insurance-coverage/">here</a>.</p>
<p>Unfortunately, insurance companies often fight hard to avoid paying their insureds under uninsured motorist coverages.&#160; Iowa law requires proof of four elements before an insurance company will be liable to pay under an uninsured motorist provision: 1) the injured person is an insured under the insurance policy provisions; (2) the injured person is legally entitled to recover damages from the owner or operator of an uninsured motor vehicle; (3) the injury to the insured was caused by an accident; and (4) the injury arose out of the ownership, maintenance, or use of an uninsured motor vehicle.&#160; Uninsured motorist coverage is denied if the injured person fails to prove any of those elements.</p>
<p>Legal fights over uninsured motorist benefits often center on the second element above.&#160; The injured person has the burden of establishing under the “legally entitled to recover” both that the uninsured motorist was liable and the extent of the insured’s injuries and damages.&#160; The insured can prove the “legally entitled to recover” element by either obtaining a valid judgment against the uninsured motorist or by bringing a direct action against the insurer under the insurance policy.&#160; The legal entitlement to recovery does not have to be proved first in a separate lawsuit against the uninsured driver.&#160; A judgment against the uninsured driver is not necessary to seek uninsured motorist benefits from an insurer.&#160; But, whether a claim is brought against the uninsured driver or solely against the insurer, the insured’s entitlement to recovery depends on establishing the uninsured motorist’s liability. </p>
<p>In defending against a "legally entitled to recover" argument, an insurer may assert as a defense to a claim the nonnegligence of the uninsured and any other defenses that the uninsured driver may have had available had that driver been sued.&#160; The general rule is that the determination of whether an insured is legally entitled to recover includes considering the defenses available to the uninsured motorist.&#160; If an uninsured motorist is not negligent, because a defense negated an element of the negligence claim or otherwise, then the insured motorist is not legally entitled to recover uninsured motorist benefits from the insurer.&#160; Because proof of the uninsured motorist’s liability is an element that must be established by the insured to recover uninsured motorist benefits, permitting injured persons to recover uninsured motorist benefits when they are unable to establish the uninsured driver’s fault would be inconsistent with the purpose of uninsured motorist coverage.</p>
<p>Uninsured motorist claims are complicated.&#160; Complex legal issues and terms may come into play because of the four elements identified above.&#160; Many insurance policies also include <a target="_blank" title="http://erbelaw.wordpress.com/2014/01/20/your-insurance-company-generally-has-no-duty-to-warn-you-of-policy-time-limits/" href="http://erbelaw.wordpress.com/2014/01/20/your-insurance-company-generally-has-no-duty-to-warn-you-of-policy-time-limits/">time limits for filing suit</a> against the insurer under the uninsured motorist coverage, which can be as short as one year.&#160; A claim for uninsured motorist benefits is usually forfeited if it's not filed within the applicable policy time limits.&#160; For these reasons we strongly recommend that you seek legal assistance in pursuing a claim for uninsured motorist benefits. </p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Tue, 20 May 2014 06:00:00 +0000http://erbelaw.com/blog/posts/an-expanded-look-at-iowa-s-uninsured-motorist-coverage-law
Application Of The "Cooperation Clause" In Insurance Policies<p><img data-rel="225x255" alt="Insurance 290x230" title="Insurance 290x230" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMTMvNDgvMzg0L2luc3VyYW5jZV8yOTB4MjMwLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/insurance-290x230.jpg" height="179" width="225" /></p>
<p>An aspect of <a title="Insurance Law" href="/practice-areas/insurance-law">insurance law</a> that people don't often think about or encounter until they make a claim is the "cooperation clause" in almost all insurance policies.&#160; Whether the claim is for <a title="Private Nuisance Law" href="/practice-areas/private-nuisance-law">private nuisance</a>, <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">personal injury or wrongful death</a>, a <a title="Trucking Accidents" href="/practice-areas/motor-vehicle-accidents/trucking-accidents">truck accident</a>, a <a title="Drunk Driving Accidents" href="/practice-areas/motor-vehicle-accidents/drunk-driving-accidents">drunk driving accident</a>, a <a title="Motorcycle Accident Law" href="/practice-areas/motorcycle-accident-law">motorcycle accident</a>, a <a title="Motor Vehicle Accidents" href="/practice-areas/motor-vehicle-accidents">car accident</a>, <a title="Products Liability/Product Warranty Law" href="/practice-areas/products-liabilityproduct-warranty-law">products liability</a>, a <a title="Dog Bite Law" href="/practice-areas/dog-bite-law">dog bite</a>, or <a title="Premises Liability Law" href="/practice-areas/personal-injurywrongful-death-law/premises-liability-law">premises liability</a>, your insurance policy likely obligates you to cooperate with your insurer if you want the claim covered. Common examples of an insured's cooperation obligations when the insurer is investigating a claim include providing documents and other information, giving an examination under oath (often to a lawyer for the insurance company), and of course honesty and good faith.&#160; An insured's breach of a cooperation clause can result in forfeiture of the insurance claim.</p>
<p>Cooperation clauses do not give insurers unlimited power to dictate things to insureds.&#160; For example, in many states an insurance company will have to prove that the insured's breach of the cooperation clause prejudiced the insurer in some manner before the insurer can argue that coverage has been forfeited.&#160; Further, most courts will review the insurance company's conduct to ensure that it that it complied with its duties under the insurance policy.</p>
<p>The review of the cooperation exhibited by insureds and insurers depends upon the insurance claim's circumstances and the type of claim.&#160; When the insured is making a claim for money under the policy (for example, a theft claim under a homeowner insurance policy), which is known as a "first-party" insurance claim, as opposed to making a claim for coverage against a third-party loss (for example, a car crash) courts often impose upon the insured a greater standard of conduct.&#160; In fact, for first-party insurance claims many courts have ruled that the duty to cooperate trumps an insured's Fifth Amendment privilege against self-incrimination. </p>
<p>In order to restrict an insurance company's attempt to assert that a minor breach of a cooperation clause causes the forfeiture of an insurance claim, most states, although not necessarily Iowa, allow an insurer to refuse coverage based on a cooperation clause only when the insurance company has been prejudiced by the lack of cooperation.&#160; Even though the focus of the court's attention is upon the insured's conduct, the insurer's behavior will not be ignored.&#160; In fact, some states, including Iowa, have decided that insurance companies must establish that they used due diligence and demonstrated good faith in seeking the insured's cooperation.&#160; In other words, the duty to cooperate is a two-way street.</p>
<p>As noted above, many courts have decided that the Fifth Amendment's privilege against self-incrimination does not apply to an insured's duty to cooperate and provide testimony under oath during the investigation of an insurance claim.&#160; This frequently occurs during the investigation of suspicious fire claims.&#160; Say an insured's house burns down.&#160; The authorities suspect that the insured committed arson, but the insured still makes a claim under a homeowner's insurance policy.&#160; The insurance company decides that it wants to take the insured's examination under oath as part of its investigation into the fire's cause.&#160; Any testimony the insured gives the insurance company can later be used against the insured as part of any prosecution for arson.&#160; That puts the insured in a difficult situation -- Give the testimony to preserve the right to make the insurance claim (which may later be denied regardless) but risk that testimony being used in a criminal proceeding, or refuse to give testimony to the insurance company but likely forfeit the right to make the insurance claim.</p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Fri, 16 May 2014 06:00:00 +0000http://erbelaw.com/blog/posts/application-of-the-cooperation-clause-in-insurance-policies
When Can You Sue For The Violation Of A State Statute?<p>Sometimes the violation of a state statute, especially a criminal law, also gives rise to a civil claim for money damages.&#160; Examples include <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">employment law</a>, <a title="Private Nuisance Law" href="/practice-areas/private-nuisance-law">private nuisance law</a>, <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">personal injury or wrongful death</a>, <a title="Trucking Accidents" href="/practice-areas/motor-vehicle-accidents/trucking-accidents">truck accident</a>, <a title="Drunk Driving Accidents" href="/practice-areas/motor-vehicle-accidents/drunk-driving-accidents">drunk driving</a>, <a title="Motorcycle Accident Law" href="/practice-areas/motorcycle-accident-law">motorcycle accident</a>, <a title="Motor Vehicle Accidents" href="/practice-areas/motor-vehicle-accidents">car accident</a>, <a title="Products Liability/Product Warranty Law" href="/practice-areas/products-liabilityproduct-warranty-law">products liability</a>, <a title="Dog Bite Law" href="/practice-areas/dog-bite-law">dog bite</a>, or <a title="Premises Liability Law" href="/practice-areas/personal-injurywrongful-death-law/premises-liability-law">premises liability</a> claims.&#160; Many statutes, particularly those that govern employment matters such as <a title="Overtime Law" href="/practice-areas/overtime-law">overtime law</a>, <a title="Iowa Wage Law" href="/practice-areas/employment-labor-law/iowa-wage-law">wage law</a>, <a title="Family And Medical Leave Act (FMLA) Law" href="/practice-areas/employment-labor-law/family-and-medical-leave-act-fmla-law">Family and Medical Leave Act</a>, <a title="Disability Discrimination Law" href="/practice-areas/employment-labor-law/disability-discrimination-law">disability discrimination</a>, some types of <a title="Wrongful Termination Law" href="/practice-areas/employment-labor-law/wrongful-termination-law">wrongful termination</a> cases, and <a title="Iowa Drug And Alcohol Testing Law " href="/practice-areas/iowa-drug-and-alcohol-testing-law--2">drug testing law</a>, specifically provide a mechanism within the statute through which employees can enforce their legal rights in civil court.&#160; But what if someone violates a statute, most commonly a criminal statute, that doesn't explicitly provide a right to sue for money damages in civil court?&#160; Can the victim also file a civil lawsuit for violation of the statute?</p>
<p>Occasionally, the violation of a criminal statute automatically gives rise to a money damages claim because the law has already recognized such a claim, regardless of what the criminal statute states.&#160; The most common example of this is car accidents and truck accidents.&#160; There may be a crime committed by violation of the motor vehicle code or a drunk driving law.&#160; None of those criminal statutes include specific language allowing victims to sue in civil court for money damages.&#160; Yet there's no question that civil liability can arise from <a target="_blank" title="http://erbelaw.wordpress.com/2013/01/11/violating-the-rules-of-the-road-may-cost-you-more-than-a-traffic-ticket/" href="http://erbelaw.wordpress.com/2013/01/11/violating-the-rules-of-the-road-may-cost-you-more-than-a-traffic-ticket/">motor vehicle code violations</a> and <a target="_blank" title="http://erbelaw.wordpress.com/2013/01/25/liability-for-alcohol-related-car-crashes/" href="http://erbelaw.wordpress.com/2013/01/25/liability-for-alcohol-related-car-crashes/">drunk driving</a>. &#160; Another example is assault and battery.&#160; Both are crimes under Iowa law, but those criminal statutes don't need special language to allow a victim to sue for money damages for <a target="_blank" title="http://erbelaw.wordpress.com/2014/01/19/recovery-of-money-damages-for-assault-and-battery/" href="http://erbelaw.wordpress.com/2014/01/19/recovery-of-money-damages-for-assault-and-battery/">assault and battery</a>.&#160; </p>
<p>The gray area includes those statutes that neither specifically include a civil enforcement provision nor encompass conduct that the law's already recognized as allowing for civil liability.&#160; Not all statutory violations give rise to a private cause of action in civil court.&#160; A private statutory cause of action exists only when the statute, explicitly or implicitly, provides for such a cause of action.&#160; A private right of action is the right of an individual to bring suit to remedy or prevent an injury that results from another party’s actual or threatened violation of a legal requirement.&#160; </p>
<p>To determine if a statute implicitly creates the right to sue in civil court, Iowa's courts ask if the legislature intended to create not just a private right but also a private remedy.&#160; In determining the legislature’s intent, Iowa uses a four-factor test:</p>
<p>1.&#160; Is the plaintiff a member of the class for whose benefit the statute was enacted?</p>
<p>2.&#160; Is there any indication of legislative intent, explicit or implicit, to either create or deny such a remedy?&#160; </p>
<p>3.&#160; Would allowing such a cause of action be consistent with the underlying purpose of the legislation?</p>
<p>4.&#160; Would the private cause of action intrude into an area over which the federal government or a state administrative agency holds exclusive jurisdiction?</p>
<p>No private cause of action for civil law remedies exists unless all four questions are satisfactorily answered.&#160; This is an issue that the trial judge would be asked to answer as a matter of law very early in the civil lawsuit.&#160; Therefore, before suing for a violation of a statute that doesn't already have an explicit or implicit right to a private cause of action, it's important to consider the four factor test and be prepared to answer those questions when the issue's raised early in the civil court proceedings.</p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Tue, 13 May 2014 06:00:00 +0000http://erbelaw.com/blog/posts/when-can-you-sue-for-the-violation-of-a-state-statute
Iowa Supreme Court Discusses How To Prove A Flood Damage Claim<p><img data-rel="225x255" alt="9907 06 9 Flash Floods In South Yorkshire Web" title="9907 06 9 Flash Floods In South Yorkshire Web" src="/system/images/W1siZiIsIjIwMTQvMDQvMTAvMTQvMTMvNTgvMzA2Lzk5MDdfMDZfOV9GbGFzaF9mbG9vZHNfaW5fU291dGhfWW9ya3NoaXJlX3dlYi5qcGciXSxbInAiLCJ0aHVtYiIsIjIyNXgyNTU%2BIl0sWyJwIiwic3RyaXAiXV0/9907_06_9---Flash-floods-in-South-Yorkshire_web.jpg" height="151" width="225" /></p>
<p>Last week the Iowa Supreme Court issued a decision (<em>Garr v. City of Ottumwa</em>) that applies Iowa's evolving law of causation to flood damage claims.&#160; Homeowners sued Ottumwa, alleging that the city negligently approved a development that caused flooding to their downstream home.&#160; Although this case concerned a flood damage claim, it also included important reminders about the importance of proving causation (that the defendant did something that caused harm) in negligence cases seeking money damages for property injuries or <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">personal injury or wrongful death</a>, whether caused by a&#160;<a title="Trucking Accidents" href="/practice-areas/motor-vehicle-accidents/trucking-accidents">truck accident</a>, <a title="Drunk Driving Accidents" href="/practice-areas/motor-vehicle-accidents/drunk-driving-accidents">drunk driving</a>, <a title="Motorcycle Accident Law" href="/practice-areas/motorcycle-accident-law">motorcycle accident</a>, <a title="Motor Vehicle Accidents" href="/practice-areas/motor-vehicle-accidents">car accident</a>, <a title="Products Liability/Product Warranty Law" href="/practice-areas/products-liabilityproduct-warranty-law">products liability</a>, <a title="Dog Bite Law" href="/practice-areas/dog-bite-law">dog bite</a>, or <a title="Premises Liability Law" href="/practice-areas/personal-injurywrongful-death-law/premises-liability-law">premises liability</a>.</p>
<p>Plaintiffs in negligence cases must prove causation.&#160; To determine whether a defendant caused a plaintiff’s harm, Iowa applies a “but-for” test.&#160; Under that rule, a defendant’s conduct is a cause in fact of the plaintiff’s harm if, but-for the defendant’s conduct, the plaintiff's harm would not have occurred.&#160; Cause in fact must exist between the defendant’s negligence and the damages sought by the plaintiff.&#160; </p>
<p>In <em>Garr</em> the Iowa Supreme Court concluded that the homeowners had failed to prove that any negligent conduct by Ottumwa was not a cause in fact of the homeowners' damages.&#160; The homeowners claimed that Ottumwa was negligent by failing to: (1) protect downstream property owners from increased water flow due to development approved by the City that led to the Garrs’ flooding and property damage; (2) establish storm water detention projects to protect the Garrs and other downstream property owners from increased water flow caused by development approved and managed by the City; and (3) comply with its policies regarding storm water management and flooding.&#160; The homeowners might have won their case had they been able to connect those negligence specifications with the flooding that later occurred.</p>
<p>The problem for the homeowners was that the trial evidence strongly suggested that a significant, rare rainstorm occurred in the area of the Garrs’ home on August 20, 2010, to the point that nothing Ottumwa did or didn't do caused the flooding or could've prevented it.&#160; The calculations by the homeowners' own expert indicated that at least 6.1 inches of rain fell in the area over a 24-hour period.&#160; Other evidence indicated that at least 6.8 inches of rain fell in that time period, which would have been significant to create a 100-year flood event.&#160; </p>
<p> Even with such an extraordinarily heavy rainfall, Ottumwa was not necessarily absolved of all liability because there may be more than one cause in fact of a plaintiff’s damages.&#160; So the major rainstorm was not, standing alone, a cause that relieves Ottumwa of its liability for the homeowners’ damages.&#160; But the homeowners still lost because there was no evidence that the Ottumwa’s negligence caused any damages.&#160; The testimony by the homeowners' expert confirmed that no reasonable efforts by Ottumwa to control upstream drainage, or other flood control measures, could have prevented the flooding to the property in such a heavy rain event.&#160; Thus the damage to the property, which the evidence established sat in a 100-year floodplain, would have occurred regardless of any negligence by Ottumwa.</p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Fri, 09 May 2014 06:00:00 +0000http://erbelaw.com/blog/posts/iowa-supreme-court-discusses-how-to-prove-a-flood-damage-claim
The Importance Of Timely Notice When Making An Insurance Claim<p><img data-rel="225x255" alt="Insurance 290x230" title="Insurance 290x230" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMTMvNDgvMzg0L2luc3VyYW5jZV8yOTB4MjMwLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/insurance-290x230.jpg" height="179" width="225" /></p>
<p>Many insurance policies that might cover <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">personal injury or wrongful death</a>, <a title="Trucking Accidents" href="/practice-areas/motor-vehicle-accidents/trucking-accidents">truck accident</a>, <a title="Drunk Driving Accidents" href="/practice-areas/motor-vehicle-accidents/drunk-driving-accidents">drunk driving</a>, <a title="Motorcycle Accident Law" href="/practice-areas/motorcycle-accident-law">motorcycle accident</a>, <a title="Motor Vehicle Accidents" href="/practice-areas/motor-vehicle-accidents">car accident</a>
, <a title="Products Liability/Product Warranty Law" href="/practice-areas/products-liabilityproduct-warranty-law">products liability</a>, <a title="Private Nuisance Law" href="/practice-areas/private-nuisance-law">private nuisance</a>, <a title="Dog Bite Law" href="/practice-areas/dog-bite-law">dog bite</a>, or <a title="Premises Liability Law" href="/practice-areas/personal-injurywrongful-death-law/premises-liability-law">premises liability</a> claims include a provision that requires the insured to provide timely notice of the possible claim to the insurance company.&#160; When such a notice provision is written as a condition precedent to policy coverage, the insured must show substantial compliance with the notice requirement.&#160; The general point of insurance policy notice provisions is to provide insurance companies with a fair and early opportunity to evaluate and perhaps defend against claims.</p>
<p>The timeliness of an insured's notice is not an easy question to answer in most cases.&#160; There is no bright-line time limit after which notice is always considered untimely.&#160; It depends upon the facts of the case; each case is unique and the timeliness of the insured's notice will hinge upon the circumstances.</p>
<p>An important factor for determining timeliness is whether the insurance company had any knowledge about the loss within a short time after the loss occurred.&#160; Waiting several months or a year or more to provide notice may result in forfeiture of the insured's rights.&#160; In one case, the Iowa Supreme Court rules that an insured had lost its insurance rights when it waited five years to give the insurance company notice of the loss.</p>
<p>If notice is required and the insured does not substantially comply with the notice requirement, then the insured must prove that failure to provide timely notice was excused, that the insurance company waived the requirement of timely notice, or that failure to provide timely notice did not prejudice the insurer.&#160; Normally, an insured’s substantial breach of a notice requirement is presumed prejudicial to the insurer.&#160; To rebut that presumption, the insured must prove that the insurer was not prejudiced.</p>
<p>Prejudice will often be found if the delay in notice hindered or eliminated the insurer's ability to view or inspect the scene.&#160; The Iowa Court of Appeals recently discussed this issue in <em>B &amp; F Jacobson Lumber &amp; Hardware v. Acuity</em>.&#160; The court held that the jury would have to decide whether the insurer was prejudiced by a possible delay in reporting a claim, even though the insured had not begun any repairs until after the lawsuit was filed.&#160; </p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Tue, 06 May 2014 06:00:00 +0000http://erbelaw.com/blog/posts/the-importance-of-timely-notice-when-making-an-insurance-claim
Private Nuisance Fracking Case Results In $2.9 Million Jury Verdict <p><img data-rel="225x255" alt="021749 Doctor Gp Medical Hospital Stethoscope Generic" title="021749 Doctor Gp Medical Hospital Stethoscope Generic" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDMvNTUvNTkvOTY3LzAyMTc0OV9kb2N0b3JfZ3BfbWVkaWNhbF9ob3NwaXRhbF9zdGV0aG9zY29wZV9nZW5lcmljLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/021749-doctor-gp-medical-hospital-stethoscope-generic.jpg" height="127" width="225" /></p>
<p>Last week a Texas jury awarded $2.9 million to a family in a <a title="Private Nuisance Law" href="/practice-areas/private-nuisance-law">private nuisance</a> lawsuit involving fracking operations.&#160; Fracking, common shorthand for "hydraulic fracturing," is a method used by natural gas and oil drillers. &#160; They force large quantities of water mixed with chemicals and sand into a shale or rock formation.&#160; That process fractures the shale around the well.&#160; The fractures in the shale in turn permit natural gas or oil deposits in the shale to move freely.&#160; The Texas case was the first time that a United States had awarded personal injury damages because of a fracking operation.</p>
<p>The family asserted that numerous health problems they were having were caused by a nearby fracking operation.&#160; News reports indicate that the family's <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">personal injuries</a> from the nearby fracking operation began with&#160;migraine headaches, nausea, and dizziness.&#160; The symptoms became progressively worse.&#160; The family began to suffer vision and hearing problems, had trembling episodes, vomited white foam, nosebleeds, nausea, rashes, and blood pressure issues.&#160; The family was forced out of their home for an extended period and lost pets and livestock.</p>
<p>The family sued and asserted that the nearby fracking operation was poorly managed and lacked appropriate emission controls.&#160; That created a private nuisance by creating harmful air pollution, including exposure to dangerous emissions of volatile organic compounds, toxic air pollutants, and diesel exhaust.&#160; The family also contended that the fracking operation's status as a private nuisance diminished the property value of the family's land.&#160; The fracking company countered that it complied with Texas regulatory requirements for air emissions and that there was no proof that its fracking operation&#160; caused any harm to the family.&#160; The jury disagreed and awarded the family $2.9 million for personal injuries and property damage.</p>
<p>As expected, the jury verdict invited immediate commentary.&#160; Fracking opponents lauded it as a landmark decision and an important step towards better regulation of the fracking industry.&#160; They argue that fracking is dangerous to people who live close to the wells.&#160; The dangers include contaminated water and dangerously polluted air.&#160; Supporters of the industry maintain that there is no proof that fracking causes any of the health problems it's been blamed for. &#160;&#160;&#160;</p>
<p>Legal commentators are equally divided.&#160; Lawyers who represent landowners and people who live near fracking operations view the Texas case as precedent-setting.&#160; But industry attorneys believe that the case is a one-off decision because each private nuisance case involves unique facts, such that a jury's decision in one case has no impact on future cases. </p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Fri, 02 May 2014 06:00:00 +0000http://erbelaw.com/blog/posts/private-nuisance-fracking-case-results-in-2-9-million-jury-verdict
So You've Applied For FMLA. Now What?<p><img data-rel="225x255" alt="021749 Doctor Gp Medical Hospital Stethoscope Generic" title="021749 Doctor Gp Medical Hospital Stethoscope Generic" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDMvNTUvNTkvOTY3LzAyMTc0OV9kb2N0b3JfZ3BfbWVkaWNhbF9ob3NwaXRhbF9zdGV0aG9zY29wZV9nZW5lcmljLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/021749-doctor-gp-medical-hospital-stethoscope-generic.jpg" height="127" width="225" /></p>
<p>Our <a title="Family And Medical Leave Act Law" href="/practice-areas/employment-labor-law/family-and-medical-leave-act-law">Family and Medical Leave Act page</a> describes the basics of FMLA law.&#160; We discuss the types of employees and circumstances that are covered under the FMLA.&#160; We also review the required employer and employee notices on that page.&#160; But what happens after you've submitted an FMLA request?</p>
<p>Employees are generally supposed to give their employee no less than thirty-days notice that they might need FMLA leave.&#160; Thirty-days notice is not mandated if the need for FMLA leave is unforeseen.&#160; If it's unforeseen medical leave an employee should notify the employer as soon as possible after the employee realizes that there may be a need to request FMLA time.&#160; The United States Department of Labor's FMLA regulations state that “[a]n employee giving notice of the need for FMLA leave does not need to expressly assert rights under the Act or even mention the FMLA to meet his or her obligation to provide notice, though the employee would need to state a qualifying reason for the needed leave and otherwise satisfy the notice requirements.”</p>
<p>Employers are required to respond to FMLA requests within five days of receiving one.&#160; An employer's FMLA response must state whether the employee is eligible for FMLA leave.&#160; That response must also inform the employee of all FMLA rights and responsibilities.&#160; If an employee does not meet the criteria for FMLA eligibility, the employer must notify the employee of the ineligibility and specify the eligibility criteria that the employee did not meet.
</p>
<p>Employers may request medical certification as part of determining an employee's FMLA eligibility.&#160; We discussed employers' right to "double check" an employee's FMLA eligibility in our blog post entitled "<a target="_blank" title="http://erbelaw.wordpress.com/2012/05/14/can-your-employer-contact-your-doctor-for-purposes-of-verifying-an-fmla-leave-request/" href="http://erbelaw.wordpress.com/2012/05/14/can-your-employer-contact-your-doctor-for-purposes-of-verifying-an-fmla-leave-request/">Can Your Employer Contact Your Doctor For Purposes Of Verifying An FMLA Leave Request?</a>"<a target="_blank" title="http://erbelaw.wordpress.com/2012/05/14/can-your-employer-contact-your-doctor-for-purposes-of-verifying-an-fmla-leave-request/" href="http://erbelaw.wordpress.com/2012/05/14/can-your-employer-contact-your-doctor-for-purposes-of-verifying-an-fmla-leave-request/"> </a>Employers don't have to request medical certification, but they do have that option if they believe it's necessary as part of their FMLA eligibility determination.&#160; If an employer does request medical certification, it has five days after receiving the medical certification to approve or deny the FMLA request.&#160; If an employee has not returned a requested medical certification form within fifteen days, the employer is permitted to send written notice to the employee denying the FMLA request.</p>
<p>The last step of the FMLA eligibility process is the employer's final certification approving or denying the requested FMLA leave. Sometimes that's done right away if the employer already has enough information to make an eligibility decision.&#160; Other times that decision has to wait for medical certification and review. </p>
<a href="https://plus.google.com/114747319374395522401/posts?rel=author">By Harley Erbe</a>Tue, 29 Apr 2014 06:00:00 +0000http://erbelaw.com/blog/posts/so-you-ve-applied-for-fmla-now-what
Chemical Safety Board Issues Report On April 2013 Texas Fertilizer Plant Explosion<p><img data-rel="225x255" alt="Fire Photography" title="Fire Photography" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvNDMvMTkvODY2L0ZpcmVQaG90b2dyYXBoeS5qcGciXSxbInAiLCJ0aHVtYiIsIjIyNXgyNTU%2BIl0sWyJwIiwic3RyaXAiXV0/FirePhotography.jpg" height="160" width="225" /></p>
<p>The Chemical Safety Board has issued a preliminary report concerning the April 17, 2013 fertilizer <a title="Fire And Explosion Law" href="/practice-areas/personal-injurywrongful-death-law/fire-and-explosion-law">explosion and fire</a> in West, Texas. The explosion at the West Fertilizer Company fertilizer plant <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">killed fifteen people</a>, wounded another 226, and leveled 120 homes while damaging an additional 200 others across 37 blocks. The fertilizer explosion was a huge blast that registered as a 2.1-magnitude earthquake and shook homes up to fifty miles away.</p>
<p>The Chemical Safety Board is an independent federal agency tasked with investigating industrial chemical accidents. The CSB's investigative personnel include chemical and mechanical engineers, industrial safety experts, and other chemical, fire, and explosion experts specialists. The CSB does not impose fines or citations, but it does make recommendations to chemical and industrial plants, regulatory agencies such as the Occupational Safety and Health Administration and the Environmental Protection Agency, industry organizations, and labor groups.&#160;</p>
<p>According to the CSB, "[t[he explosion at West Fertilizer resulted from an intense fire in a wooden warehouse building that led to the detonation of approximately 30 tons of [ammonium nitrate] stored inside in wooden bins." It also noted that "[t]he building lacked a sprinkler system or other systems to automatically detect or suppress fire, especially when the building was unoccupied after hours. By the time firefighters were able to reach the site, the fire was intense and out of control." The explosion is believed to have occurred approximately twenty minutes after the fire department was notified.</p>
<p>The CSB was critical of how the storage of ammonium nitrate is governed under existing private fire codes. Those codes are "quite old and appear to be confusing or contradictory, even to code experts, and are in need of a comprehensive review in light of the West disaster and other recent accidents." Regardless, because there was no governing statewide or local fire code, the West Fertilizer Company was not required to comply with any state or local fire codes in any manner. </p>
<p>West Fertilizer Company did have to follow federal OSHA codes. Nothing in those codes was violated however. In fact, throughout CSB's report it laments the lack of safety codes regarding storage and handling of ammonium nitrate or mandating the use of safer forms of the chemical.</p>
<p>Similarly, and finally, CSB observed that no laws prohibited West Fertilizer Company from operating its plant in a nonindustrial area. "No federal, state, or local standards have been identified that restrict the siting of ammonium nitrate storage facilities in the vicinity of homes, schools, businesses, and health care facilities. In West, Texas, there were hundreds of such buildings within a mile radius, which were exposed to serious or life-threatening hazards when the explosion occurred on April 17."</p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Fri, 25 Apr 2014 06:00:00 +0000http://erbelaw.com/blog/posts/chemical-safety-board-issues-report-on-april-2013-texas-fertilizer-plant-explosion
The Overtime Exemption For Certain Motor Carrier Employees<p><img data-rel="225x255" alt="Clock" title="Clock" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDUvMTAvNTkvODg1L2Nsb2NrLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/clock.jpg" height="207" width="225" /></p>
<p>A few entire classes of employees are not covered by the overtime provisions of the federal Fair Labor Standards Act.&#160; For various policy reasons,the federal government has decided that employers don't have to worry about paying overtime to certain types of employees.&#160; Such uncovered employees are thus not entitled to overtime regardless of whether they're paid by the hour or how many hours they work.&#160;&#160;</p>
<p>One example of such employees are certain workers for employers that are governed by the federal Motor Carrier Act of 1935.&#160; The Motor Carrier Act overtime exemption applies to people employed by a motor carrier or motor private carrier who serve as drivers, driver’s helpers, loaders, or mechanics and whose duties affect the safety of operation of motor vehicles in transportation on public highways in interstate or foreign commerce.&#160; There's also a minimum weight (10,000 pounds) for such motor vehicles.&#160; Employees who work with vehicles weighing less than 10,000 pounds are still eligible for overtime.</p>
<p>To come within the Motor Carrier Act exemption, employees' duties must include the performance, either regularly or occasionally, of activities that impact the safety of a motor vehicle that is used in transportation on public highways in interstate or foreign commerce.&#160; Only drivers, driver’s helpers, loaders, or mechanics can possibly fall within the Motor Carrier Act exemption.&#160; Those categories of employees generally have the requisite duties to be covered by the exemption, even if the employee doesn't perform many activities that affect safety.&#160; There's an exception to that though -- When an employee's daily activities have no substantial direct effect on safety, or when the employee's safety activities are trivial, casual, and insignificant, the employee may be outside the Motor Carrier Exemption's scope.</p>
<p>As the Motor Carrier Act exemption's general definition indicates, the employee's duties must concern transportation in interstate or international commerce.&#160; One possibility to meet that requirement is transportation across state or international borders. &#160; Interstate or international commerce also includes connections with an in-state terminal (rail, air, water, or land) that is part of an interstate or international shipment of goods that are merely passing through the area.</p>
<p>The Motor Vehicle Act exemption has its limits.&#160; It's inapplicable to employees whose duties to not affect vehicle safety.&#160; That includes employees such as dispatchers, office personnel, workers who unload vehicles, or those who help load a vehicle but are not responsible for the safe loading of the vehicle. Only drivers, drivers’ helpers, loaders who are responsible for proper loading, and mechanics working directly on motor vehicles that are to be used in transportation of passengers or property in interstate commerce can be exempt from the overtime provisions of the FLSA under the Motor Carrier Act exemption.</p>
<p><a title="Overtime Law" href="/practice-areas/overtime-law">Overtime cases</a> require legal analysis of federal statutes, U.S. Department of Labor regulations, and court decisions.&#160; I can help you with any <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">employment law or labor law</a> questions that you might have.&#160; Please feel free to contact me if there's an employment law or labor law matter I can help you with.</p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Tue, 22 Apr 2014 06:00:00 +0000http://erbelaw.com/blog/posts/the-overtime-exemption-for-certain-motor-carrier-employees
General Motors Product Defect Problems Continue To Mount<p><img data-rel="225x255" alt="Car" title="Car" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMTcvNDYvMjU2L2Nhci5qcGciXSxbInAiLCJ0aHVtYiIsIjIyNXgyNTU%2BIl0sWyJwIiwic3RyaXAiXV0/car.jpg" height="255" width="170" /></p>
<p>Auto manufacturer General Motors faces increasing exposure to <a title="Products Liability/Product Warranty Law" href="/practice-areas/products-liabilityproduct-warranty-law">products liability</a> claims involving <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">personal injury or death</a> after recent revelations of additional problems with some of its vehicles.&#160; Last week General Motors announced another defect involving cars that it's previously recalled because of faulty ignition switches.&#160; The new recall covers vehicles manufactured from 2003 to 2011.&#160; </p>
<p>The defective component is another part of the ignition systems -- the "lock cylinder," which is where the driver inserts the ignition key.&#160; The current lock cylinder could allow the key to fall out while the car is running.&#160; General Motors states that the lock cylinder defect may cause <a title="Motor Vehicle Accidents" href="/practice-areas/motor-vehicle-accidents">car accidents</a>, including "a possible roll-away, crash, and occupant or <a title="Pedestrian Accidents" href="/practice-areas/personal-injurywrongful-death-law/pedestrian-accidents">pedestrian</a> injuries."</p>
<p>The company GM said it is "aware of several hundred complaints of keys coming out of ignitions." It said that "searches of GM and government databases found one roll-away in a parking lot that resulted in a crash and one injury claim. The same searches turned up no fatalities."</p>
<p>The previous recall was for faulty ignition switches that can inadvertently slip out of "run."&#160; That can cause the engine to shut off shutting off the engine and disable the vehicle's airbags.&#160; The ignition switch can possibly, through jostling or car vibration, move from the "on" or "run" position into the "accessory" position.&#160; Accessory mode causes the engine to unexpectedly shut down, kills power steering and power braking, and disables the air bags.&#160; The ignition switch defect has been linked to 31 crashes and 12 deaths in the United States.&#160; Several lawsuits have been filed as a result.</p>
<p>Also last week, General Motors placed two engineers on paid leave as it investigates the engineers' role in the ignition switch issue.&#160; The two engineers are Gary Altman, who was the program manager for the Saturn Ion and Chevrolet Cobalt programs during most of the 2003 to 2011 time period and Ray DeGiorgio.&#160; Mr. DeGiorgio was the designer of the original ignition switch.</p>
<p>Here are the vehicles involved in both the switch and lock cylinder recalls:</p>
<p> 2003-2007 Saturn Ion<br /> 2005-2010 Chevrolet Cobalt<br /> 2006-2010 Pontiac Solstice<br /> 2007-2010 Pontiac G5<br /> 2007-2010 Saturn Sky<br /> 2006-2011 Chevrolet HHR</p>
<p>General Motors has informed owners of the recalled vehicles that the switches and lock cylinders will be sent together.&#160; That will allow all necessary recall work to be performed during the same repair visit.</p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Thu, 17 Apr 2014 06:00:00 +0000http://erbelaw.com/blog/posts/general-motors-product-defect-problems-continue-to-mount
Flash Flood Safety<p><img data-rel="225x255" alt="9907 06 9 Flash Floods In South Yorkshire Web" title="9907 06 9 Flash Floods In South Yorkshire Web" src="/system/images/W1siZiIsIjIwMTQvMDQvMTAvMTQvMTMvNTgvMzA2Lzk5MDdfMDZfOV9GbGFzaF9mbG9vZHNfaW5fU291dGhfWW9ya3NoaXJlX3dlYi5qcGciXSxbInAiLCJ0aHVtYiIsIjIyNXgyNTU%2BIl0sWyJwIiwic3RyaXAiXV0/9907_06_9---Flash-floods-in-South-Yorkshire_web.jpg" height="151" width="225" /></p>
<p>Flash floods can be deceptively dangerous.&#160; <a title="Pedestrian Accidents" href="/practice-areas/personal-injurywrongful-death-law/pedestrian-accidents">Pedestrians</a>, <a title="Bicycle Accidents" href="/practice-areas/personal-injurywrongful-death-law/bicycle-accidents">bicyclists</a>, <a title="Motorcycle Accident Law" href="/practice-areas/motorcycle-accident-law">motorcyclists</a>, and people driving <a title="Motor Vehicle Accidents" href="/practice-areas/motor-vehicle-accidents">cars</a> and <a title="Trucking Accidents" href="/practice-areas/motor-vehicle-accidents/trucking-accidents">trucks</a> can find themselves in a life-threatening situation before they have a chance to react.&#160; Safety and care are the best way to avoid being <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">injured or killed</a> in a flash flood.</p>
<p>The term "flash flood" can be a bit of a misnomer because it brings to mind a sudden flood that comes out of nowhere, which is not always the case.&#160; Flash floods are floods that develop in under six hours, sometimes in just a few minutes and without warning. They tend to occur in low-lying areas that don't have adequate drainage.&#160; Flash floods are most common in the spring, which brings a combination of melting ice and snow, high river levels, and severe weather that includes torrential rains.&#160; Flash floods can be caused by heavy rain, ice jams in rivers and other waterways, and dam or levee breaks.</p>
<p>Flash floods often have fast-moving water.&#160; That increases the danger for anyone trying to cross an area of flash flooding.&#160; Most flash flood deaths occur when people are swept away by the floodwaters while trying to drive or walk across them.&#160; Fast-moving water does not need to be very deep to carry away something as large as an SUV.&#160; Even water of 1-2 feet in depth is sufficient to begin moving large objects; six inches can be enough to knock over a person and send them tumbling downstream.&#160; </p>
<p>In short, the best way to remain safe when encountering waters from&#160; flash flood is to turn around and find an alternate route.&#160; You or your vehicle may be swept away if you try to cross the water.&#160; Even if your vehicle isn't swept away, the floodwater can cause it to stall, leaving you stranded in the middle of floodwaters that may begin to rise around your vehicle now that you've blocked the water.&#160; If that happens, get out of your vehicle as fast as possible and to high ground before the vehicle is swept away.&#160;</p>
<p>If you do find yourself caught in a flash flood, either as a pedestrian or in a vehicle, the first thing to do is not to panic.&#160; If you're in a vehicle and it starts to submerge below the floodwaters, stay calm and wait for the vehicle to fill with water before trying to open the door and exit.&#160; Hold your breath, open the door, and swim to the surface.&#160; If you're not in a vehicle when overtaken by floodwaters, point your feet downstream and always try to go over obstacles, not under them where you may become stuck under water.</p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Tue, 15 Apr 2014 06:00:00 +0000http://erbelaw.com/blog/posts/flash-flood-safety
Beyond Workers' Compensation -- Your Legal Rights When Injured While Working<p><img data-rel="225x255" alt="First Aid Kit 006" title="First Aid Kit 006" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMjUvNTUvNjU3L0ZpcnN0X2FpZF9raXRfMDA2LmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/First-aid-kit-006.jpg" height="135" width="225" /></p>
<p>Worker injuries or death that occur while working can lead to several different types of <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">personal injury or wrongful death</a> claims. First, there are claims available under Iowa's workers' compensation statute, Iowa Code Chapter 85. Employers that have workers' compensation coverage are generally immune from all other types of injury or death claims outside of the workers' compensation process itself. </p>
<p>Second, "third-party liability" claims are sometimes available. Third-party liability claims encompass situations in which someone or something else, besides just the work environment, caused the employee's accident. An example might be a <a title="Products Liability/Product Warranty Law" href="/practice-areas/products-liabilityproduct-warranty-law">products liability</a> claim that occurs because of injuries or death due to machinery, equipment, or chemicals. Or perhaps the employee was in a <a title="Motor Vehicle Accidents" href="/practice-areas/motor-vehicle-accidents">car accident</a> while working. Other examples of third-party liability for a worker's injuries or death include <a title="Fire And Explosion Law" href="/practice-areas/personal-injurywrongful-death-law/fire-and-explosion-law">fire or explosion</a>, <a title="Dog Bite Law" href="/practice-areas/dog-bite-law">dog bites</a>, <a title="Dog Bite Law" href="/practice-areas/dog-bite-law">dog-at-large/vehicle accidents</a>, <a title="Premises Liability Law" href="/practice-areas/personal-injurywrongful-death-law/premises-liability-law">premises liability</a>, <a title="Trucking Accidents" href="/practice-areas/motor-vehicle-accidents/trucking-accidents">truck</a>, <a title="Drunk Driving Accidents" href="/practice-areas/motor-vehicle-accidents/drunk-driving-accidents">drunk driving</a>, <a title="Train And Railroad Accident Law" href="/practice-areas/personal-injurywrongful-death-law/train-and-railroad-accident-law--3">train or railroad</a>, <a title="Bicycle Accidents" href="/practice-areas/personal-injurywrongful-death-law/bicycle-accidents">bicycle</a>, or <a title="Pedestrian Accidents" href="/practice-areas/personal-injurywrongful-death-law/pedestrian-accidents">pedestrian accidents</a>. In such cases the employee or the employee's surviving family may seek not only workers' compensation benefits but can also pursue money damages claims against responsible third parties.</p>
<p>Finally, difficult and rare "co-employee gross negligence" are available against co-workers who may have caused or contributed to the employee's injuries or death. Iowa Code 85.20(2) exposes co-workers to lawsuits for money damages if the accident is "caused by the other employee’s gross negligence amounting to such lack of care as to amount to wanton neglect for the safety of another." Co-worker gross negligence are very hard to prove. The co-worker is only liable if the plaintiff can prove a level of conduct akin to recklessness, which has been characterized as falling between mere unreasonable risk of harm in ordinary negligence and intent to harm.</p>
<p>Iowa requires that plaintiffs in co-worker gross negligence cases prove three elements for a successful claim under Iowa Code 85.20(2). One, the co-worker's knowledge of the peril that caused the employee's injuries or death. Two, the co-worker's knowledge that injury is a probable, as opposed to a possible, result of the danger. Three, the co-worker's conscious failure to avoid the peril.</p>
<p>Most co-worker gross negligence cases are fought are fought over the second and third elements. The second element, knowledge of probable injury, is the most frequent subject of court discussion. The Iowa Supreme Court has defined "probable" in this context as "that which seems reasonably to be expected: so far as fairly convincing evidence or indications go." In contrast, "possible consequences are those which happen so infrequently that they are not expected to happen again." </p>
<p>The second element of a co-worker gross negligence case requires more than a showing of the coworker's knowledge of foreseeability—even certainty—that accidents will happen. The probability prong is not satisfied by simply asserting that the coworkers knew that sooner or later someone would be injured. A plaintiff must show that the coworkers knew their actions would place the plaintiff in such "imminent danger" that he or she would be "more likely than not" be injured. </p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Fri, 11 Apr 2014 06:00:00 +0000http://erbelaw.com/blog/posts/beyond-workers-compensation-your-legal-rights-when-injured-while-working
Insurance Bad Faith Liability For Delayed Payments<p><img data-rel="225x255" alt="Insurance 290x230" title="Insurance 290x230" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMTMvNDgvMzg0L2luc3VyYW5jZV8yOTB4MjMwLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/insurance-290x230.jpg" height="179" width="225" /></p>
<p>An often overlooked aspect of Iowa's <a title="Insurance Law" href="/practice-areas/insurance-law">insurance bad faith</a> law is insurance companies' liability for delayed payment of claims.&#160; Insurers can't act unreasonably in delaying payments on <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">personal injury or wrongful death</a>, <a title="Trucking Accidents" href="/practice-areas/motor-vehicle-accidents/trucking-accidents">truck accident</a>, <a title="Drunk Driving Accidents" href="/practice-areas/motor-vehicle-accidents/drunk-driving-accidents">drunk driving</a>, <a title="Motorcycle Accident Law" href="/practice-areas/motorcycle-accident-law">motorcycle accident</a>, <a title="Motor Vehicle Accidents" href="/practice-areas/motor-vehicle-accidents">car accident</a>, <a title="Products Liability/Product Warranty Law" href="/practice-areas/products-liabilityproduct-warranty-law">products liability</a>, <a title="Private Nuisance Law" href="/practice-areas/private-nuisance-law">private nuisance</a>, <a title="Dog Bite Law" href="/practice-areas/dog-bite-law">dog bite</a>, or <a title="Premises Liability Law" href="/practice-areas/personal-injurywrongful-death-law/premises-liability-law">premises liability</a> claims. &#160; An insurer must have a reasonable basis for any delay in a claims payment.&#160; </p>
<p>In general, Iowa's law concerning insurance bad faith mandates that insurers pay or deny&#160;an insurance&#160;claim within a reasonable time&#160;period.&#160; The insured should receive prompt responses and answers to questions or concerns about the insurance claim.&#160; Iowa law prohibits insurance companies from unnecessarily delaying the consideration of an insurance claim or requesting unreasonable documentation or information&#160;as a delay tactic. </p>
<p>Insurers&#160;can be found liable for insurance&#160;bad faith even&#160;after an insured’s claim has been fully paid.&#160; In those situations, the&#160;insured will frequently argue that the insurance company&#160;improperly delayed or prolonged its claims investigation or unreasonably withheld the claims payment. &#160; This category of insurance bad faith claim can also be asserted when an insurance company withholds payment for undisputed damages for no apparent reason.</p>
<p>An insurance bad faith case in which the plaintiff alleges that the insurer unreasonably delayed making a claims decision or a payment focuses on the reason for the insurer's delay.&#160; Courts carefully analyze the insurer’s attitude towards the claim and the manner in which the claim was investigated.&#160; Among the factors that courts consider in evaluating the reasonableness of a delayed claims decision or payment are:</p>
<ul><li>&#160;Any documentation from the insurer that summarizes the investigation's process and explains the reasons for any delays.</li>
<li>&#160;Whether the insurer's investigation was reasonable, in good faith, and prompt.</li>
<li>Whether any reasons used to explain a lengthy claims investigation were relevant and important to the circumstances encompassed by the insurance claim.</li>
<li>Whether the insurance company&#160;maintained good communication with the insured during the claims process.&#160;</li>
</ul>
<p>We have represented many people in cases in which they allege that their insurance company improperly delayed payment of an insurance claim. Please feel free to contact us if you believe that you've been in a similar situation and would like to see if we can help out.</p>
<a href="https://plus.google.com/114747319374395522401#114747319374395522401?rel=author">By Harley Erbe</a>Tue, 08 Apr 2014 06:00:00 +0000http://erbelaw.com/blog/posts/insurance-bad-faith-liability-for-delayed-payments
The Iowa Court Of Appeals Obliterates A Dog Bite Defendant<p><img data-rel="225x255" alt="Snarling Dog E1360684279321" title="Snarling Dog E1360684279321" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvNDkvMTMvMjIyL3NuYXJsaW5nX2RvZ19lMTM2MDY4NDI3OTMyMS5qcGciXSxbInAiLCJ0aHVtYiIsIjIyNXgyNTU%2BIl0sWyJwIiwic3RyaXAiXV0/snarling-dog-e1360684279321.jpg" height="149" width="225" /></p>
<p>On March 26 the Iowa Court of Appeals issued a new <a title="Dog Bite Law" href="/practice-areas/dog-bite-law">dog bite</a> decision that serves as a reminder for the amount of trouble that a bad dog bite can cause defendants in dog bite cases.&#160; The case, <em>Burt v. Miller</em>, was a <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">personal injury</a> case arising out of a dog bite to an 11 year-old child.&#160; It's a cautionary tale of the significant legal exposure that a dog owner faces when the dog bites someone.</p>
<p>The 11 year-old suffered serious injuries during the dog attack.&#160; He was in the hospital for sixteen days.&#160; He had five surgeries on his leg, including a skin graft that caused <a target="_blank" title="http://erbe-law-firm.herokuapp.com/blog/posts/recovery-of-money-damages-for-scarring" href="http://erbe-law-firm.herokuapp.com/blog/posts/recovery-of-money-damages-for-scarring">scarring</a>.&#160; He walks with a limp and cannot stand for long periods of time.&#160; The child testified that he was unable to participate in sports with his friends.&#160; There was also evidence that the child was embarrassed to have people see his leg and was afraid of dogs.&#160; The child had medical bills of $54,655.04 resulting from the dog attack.&#160; Based on that trial evidence, the dog owner was ordered to the child and his family over $125,000 in money damages.&#160;&#160;</p>
<p>The dog owner appealed the trial court's decision.&#160; He argued that he shouldn't have been found 100% at fault for the dog attack.&#160; The dog owner further maintained that the money damages ordered by the court were excessive.&#160; The Iowa Court of Appeals rejected all of those arguments.</p>
<p>Because Iowa's dog bite statute imposes strict liability for dog bites on dog owners, the court ruled on appeal that <a target="_blank" title="http://erbe-law-firm.herokuapp.com/blog/posts/the-basics-of-iowa-s-comparative-fault-law" href="http://erbe-law-firm.herokuapp.com/blog/posts/the-basics-of-iowa-s-comparative-fault-law">contributory negligence</a> is not a defense.&#160; The dog owner contended that other people present in the home at the time of the attack should bear a portion of the blame for the dog attack.&#160; The Court of Appeals determined that the trial court properly assigned one hundred percent of the fault to the defendant, who was the owner of the dog.</p>
<p>The Court of Appeals also rejected the dog owner's argument that he couldn't be liable if he didn't know the dog's dangerous propensities.&#160; But again, because Iowa law imposes strict liability for dog bites on dog owners, the owner’s knowledge of a dog’s propensity to be vicious is not an essential element of claims against dog owners.&#160; Dog owners are absolutely liable for dog attacks, regardless of whether or not the owner was negligent or had knowledge of the dog’s vicious propensity.&#160;</p>
<p>Finally, the dog owner contended that the amount of past medical expenses awarded to the plaintiffs was not supported by the evidence.&#160; Iowa Code 351.28 makes the owner of a dog liable for damages “done by” the dog.&#160; That language requires a causal connection between the animal’s actions and the damages sought by the plaintiff.&#160; Because the dog owner signed a stipulation "that medical bills and summary of treatment incurred herein were within a reasonable degree of medical certainty proximately caused by the dog bite on or about May 24, 2009" and "that said bills are fair and reasonable and medically necessary," the owner agreed that there was a causal connection between the dog’s actions and the victim’s past medical expenses.&#160; The Iowa Court of Appeals thus concluded that this argument was baseless.</p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Fri, 04 Apr 2014 06:00:00 +0000http://erbelaw.com/blog/posts/the-iowa-court-of-appeals-obliterates-a-dog-bite-defendant
Causation -- An Often Overlooked Element In Wrongful Termination Cases<p><img title="Financial Stress" alt="Financial Stress" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMDMvMDYvNjk4L2ZpbmFuY2lhbF9zdHJlc3MuanBnIl0sWyJwIiwidGh1bWIiLCIyMjV4MjU1PiJdLFsicCIsInN0cmlwIl1d/financial-stress.jpg" data-rel="225x255" height="169" width="225" /></p>
<p>A successful wrongful termination case requires you to prove that you were fired in retaliation for engaging in some sort of "protected activity."&#160; Some <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">employment laws</a>, such as the <a title="Family And Medical Leave Act Law" href="/practice-areas/employment-labor-law/family-and-medical-leave-act-law">FMLA</a>, <a title="Disability Discrimination Law" href="/practice-areas/employment-labor-law/disability-discrimination-law">civil rights laws</a>, or <a title="Overtime Law" href="/practice-areas/overtime-law">overtime laws</a>, have specific rules and standards for retaliatory discharge claims.&#160; Such claims are outside the scope of this post.&#160; Instead, I want to focus on other types of wrongful termination claims, like those noted on our firm's <a title="Wrongful Termination Law" href="/practice-areas/employment-labor-law/wrongful-termination-law">Wrongful Termination</a> webpage, that are not necessarily created by a state or federal statute but are instead derived from Iowa Supreme Court decisions.</p>
<p>The examples on our Wrongful Termination page refer to various types of "protected activity" that the Iowa Supreme Court has recognized.&#160; Protected activities are those that you have a right to engage in without fear of retaliation from your employer.&#160; It's illegal in Iowa for your employer to fire you because you engaged in a protected activity.&#160; But it's not enough to merely prove that you were fired after engaging in protected activity.&#160; You also have to establish a cause-and-effect link, or "causation," between your protected activity and your firing.&#160; </p>
<p>The causation element of a wrongful termination claim requires you to prove that your protected activity was the "determinative factor" in your employer's decision to fire you.&#160; A factor is "determinative" if it is the reason that tipped the scales decisively one way or the other, even if it was not the predominant reason behind your employer's decision to fire you.&#160; So how do you prove causation, that your protected activity was the determining factor in your employer's decision to fire you?</p>
<p>First, you have to prove that your employer knew about your protected activity <em>before </em>you were fired.&#160; The Iowa Supreme Court has made clear that wrongful termination cases fail if the employer has no knowledge the employee engaged in the protected activity until after the employee is fired.&#160; Quite simply, an employer can't be motivated to fire you in retaliation for activity that the employer knows nothing about.</p>
<p>Second, another aspect of the chronology that's very important is the amount of time between your employer learning of your protected activity and your firing.&#160; The longer the period of time between those two events, the harder it is to prove that your protected activity was a determining factor in your firing.&#160; Conversely, a short period of time between the two events is good proof that there was a connection.</p>
<p>Third, any negative or hostile statements your employer makes about your protected activity are always useful evidence.&#160; Maybe your employer criticized you for engaging in the protected activity.&#160; Statements that prove retaliatory motive are especially good when they appear on paper or in an e-mail.</p>
<p>Fourth, disproving or minimizing your employer's stated reasons (legitimate excuses) for firing you is a common way to prove that your protected activity was the true determining factor in your discharge.&#160; Employers usually try to claim that some legitimate discharge reason (poor performance, tardiness, violation of company policy, insubordination, etc.) existed and that the legitimate reason, and not your protected activity, led to your firing.&#160; You're well on your way to winning your wrongful termination case if you can disprove your employer's allegations against you.&#160; You can also try to demonstrate that your employer fired you for a very minor reason and that the discipline was excessive for your alleged wrongdoing (the punish didn't fit your supposed crime, so there must be some other reason behind your termination, such as your protected activity).</p>
<p>Fifth, it's always useful to find out how your employer treated other employees who engaged in the same protected activity.&#160; For example, if you're suing your employer for firing you in retaliation for filing a workers' compensation claim, you'll want to know what happened to other employees who filed a workers' compensation claim against your employer.&#160; If they've all been disciplined in some manner after filing their workers compensation claim, then that's good evidence that you likewise got in trouble for filing a workers' compensation claim.&#160; But on the other hand, if nothing happened to other people who filed workers' compensation claims, then that can be used as evidence that your workers' compensation claim was unrelated to your termination. &#160;&#160;</p>
<p>Finally, the same concept applies to learning about what usually happens to employees who committed the same termination-level misconduct that your employer claims you engaged in.&#160; Say that your employer claims that the true reason for your firing was some company policy that you violated.&#160; Well, what's the standard punishment for other employees who committed the same policy violation?&#160; Does your employer fire everyone who engages in that type of policy violation, or were you singled out for especially harsh treatment compared to what happened to other employees in similar circumstances?&#160; If you were singled out for harsh punishment, why?&#160; Was it because you had engaged in protected activity and those other employees hadn't?&#160; Or is there some legitimate, lawful explanation for why you received greater punishment than your employer usually metes out for similar policy violations? </p>
<p>Please contact us if you believe that your employer has wrongfully terminated you.&#160; We'll be happy to learn about your situation to see if there's any way we can help out. </p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Tue, 01 Apr 2014 06:00:00 +0000http://erbelaw.com/blog/posts/causation-an-often-overlooked-element-in-wrongful-termination-cases
The Basics Of Iowa's Comparative Fault Law<p><img title="Gt Rowan County Ambulance" alt="Gt Rowan County Ambulance" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvNDAvNDQvNjgxL0dUX3Jvd2FuX2NvdW50eV9hbWJ1bGFuY2UuSlBHIl0sWyJwIiwidGh1bWIiLCIyMjV4MjU1PiJdLFsicCIsInN0cmlwIl1d/GT_rowan_county_ambulance.JPG" data-rel="225x255" height="134" width="225" /></p>
<p>Oftentimes in <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">personal injury or wrongful death</a> cases, the defendant is clearly 100% at fault for the accident.&#160; Defendants that are completely at fault are required to pay the full damages of any injured parties.&#160; But there are times, especially in <a title="Motor Vehicle Accidents" href="/practice-areas/motor-vehicle-accidents">car accident</a> cases, when both parties may bear some of the blame for the accident.&#160; Using the motor vehicle accident example, one driver may have been speeding and the other driver may have gone through a stop sign without yielding the right of way.&#160; In that situation, Iowa's law of "comparative fault," (Iowa Code Chapter 668) will apply to the case.</p>
<p>Iowa's Comparative Fault Act can be implicated in any many different kinds of cases.&#160; Examples include <a title="Fire And Explosion Law" href="/practice-areas/personal-injurywrongful-death-law/fire-and-explosion-law">fire or explosion</a>, <a title="Products Liability/Product Warranty Law" href="/practice-areas/products-liabilityproduct-warranty-law">products liability</a>, <a title="Dog Bite Law" href="/practice-areas/dog-bite-law">dog-at-large/vehicle accidents</a>, <a title="Premises Liability Law" href="/practice-areas/personal-injurywrongful-death-law/premises-liability-law">premises liability</a>, <a title="Trucking Accidents" href="/practice-areas/motor-vehicle-accidents/trucking-accidents">truck</a>, <a title="Boating Accidents" href="/practice-areas/personal-injurywrongful-death-law/boating-accidents">boating</a>, <a title="Drunk Driving Accidents" href="/practice-areas/motor-vehicle-accidents/drunk-driving-accidents">drunk driving</a>, <a title="Motorcycle Accident Law" href="/practice-areas/motorcycle-accident-law">motorcycle</a>, <a title="Train And Railroad Accident Law" href="/practice-areas/personal-injurywrongful-death-law/train-and-railroad-accident-law--3">train or railroad</a>, <a title="Bicycle Accidents" href="/practice-areas/personal-injurywrongful-death-law/bicycle-accidents">bicycle</a>, or <a title="Pedestrian Accidents" href="/practice-areas/personal-injurywrongful-death-law/pedestrian-accidents">pedestrian accidents</a>.&#160; The Iowa Court of Appeals <a title="http://erbe-law-firm.herokuapp.com/blog/posts/railroad-company-wins-railroad-crossing-death-case-without-taking-it-to-trial" href="http://erbe-law-firm.herokuapp.com/blog/posts/railroad-company-wins-railroad-crossing-death-case-without-taking-it-to-trial" target="_blank">recently denied</a> the plaintiffs' recovery in a railroad accident case when it was determined that the deceased driver was 100% at fault for a train/vehicle collision at a railroad crossing. &#160;&#160; </p>
<p>Under Iowa's comparative fault law the total possible fault among all parties is 100%.&#160; Fault is then assigned to each party depending on how much blame they bear for the accident.&#160; For example, using the car crash hypothetical above, the speeding driver may be found 25% at fault and 75% fault may be assigned to the driver who failed to stop and yield the right-of-way.</p>
<p>The apportionment of fault affects the plaintiff's monetary recovery.&#160; A defendant only has to pay money damages to the extent that defendant is found at fault.&#160; Similarly, a plaintiff's monetary recovery is reduced by the amount of fault that's assigned the plaintiff.&#160; Returning to our car crash example, if the speeding plaintiff is awarded $100,000 in damages but is found 25% at fault, that plaintiff's recovery will be reduced by 25%, or $25,000, leaving the plaintiff with a $75,000 recovery.</p>
<p>Iowa's comparative fault rules apply up to the point that the plaintiff is found to be 50% at fault. At that point the plaintiff receives exactly half of the money damages awarded in the case. But it's all over for the plaintiff once the plaintiff is found to be more than 50% at fault. Iowa's Comparative Fault Act prohibits a monetary recovery for any plaintiff that is found to be greater than 50% at fault.</p>
<p>Juries have tremendous latitude in apportioning fault&#160;among the parties to a lawsuit.&#160; The standard comparative fault jury instruction tells juries that "damages may be the fault of more than one person.&#160; In comparing fault, you should consider all of the surrounding circumstances as shown by the evidence, together with the conduct of the parties and the extent of the causal relation between their conduct and the damage claimed.&#160; You should then determine what percentage, if any, each party's fault contributed to the damages." </p>
<a>By Harley Erbe</a>Fri, 28 Mar 2014 06:00:00 +0000http://erbelaw.com/blog/posts/the-basics-of-iowa-s-comparative-fault-law
Distracted Driving -- It's About More Than Texting While Driving<p><img data-rel="225x255" alt="Car" title="Car" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMTcvNDYvMjU2L2Nhci5qcGciXSxbInAiLCJ0aHVtYiIsIjIyNXgyNTU%2BIl0sWyJwIiwic3RyaXAiXV0/car.jpg" height="255" width="170" /></p>
<p>It's estimated that distracted driving contributes to 10% of all <a title="Motor Vehicle Accidents" href="/practice-areas/motor-vehicle-accidents">auto accidents</a>.&#160; Of course, texting while driving is currently the in vogue evil that must be eliminated so that car crashes are prevented.&#160; But motor vehicle accidents happened before the invention of cell phones and continue to happen regardless of what bans or limitations states place on their use in cars and <a title="Trucking Accidents" href="/practice-areas/motor-vehicle-accidents/trucking-accidents">trucks</a>.&#160; So there must be other causes of distracted driving.</p>
<p>Distracted drivers can cause accidents because they stop paying attention to the road, their course of travel, their speed, traffic signals, traffic conditions, and <a title="Pedestrian Accidents" href="/practice-areas/personal-injurywrongful-death-law/pedestrian-accidents">pedestrians</a>.&#160; An immediate question in the aftermath of an accident that causes <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">personal injury or wrongful death</a>, whether it's a <a title="Drunk Driving Accidents" href="/practice-areas/motor-vehicle-accidents/drunk-driving-accidents">drunk driving</a>, <a title="Motorcycle Accident Law" href="/practice-areas/motorcycle-accident-law">motorcycle</a>,<a title="Train And Railroad Accident Law" href="/practice-areas/personal-injurywrongful-death-law/train-and-railroad-accident-law--3"> train or railroad</a>, <a title="Bicycle Accidents" href="/practice-areas/personal-injurywrongful-death-law/bicycle-accidents">bicycle</a>, or pedestrian accident, is what was the guilty driver doing immediately before the crash?&#160; Some distracted driving accidents can be particularly gruesome, resulting in <a title="Fire And Explosion Law" href="/practice-areas/personal-injurywrongful-death-law/fire-and-explosion-law">fires</a> and extended <a title="Insurance Law" href="/practice-areas/insurance-law">insurance claims</a>.&#160; </p>
<p>Studies have identified seven significant distractions that cause motor vehicle accidents:</p>
<h3>Cell Phones And Other Handheld Devices</h3>
<p>Ah yes, the poster child for distracted driving.&#160; Iowa has a limited handheld device ban that applies to texting while driving.&#160; But that's just one of the gazillion things that you can do with a modern smart phone.&#160; You can also be distracted and occupy a hand while you read and send e-mails, look at documents and web pages, use social media, download one of the top five currently recommended apps for this, that, or the other thing, program GPS, and on and and on.&#160; Even good old fashioned talking on the phone can be distracting, especially if you're holding the phone to your ear.&#160; The solution:&#160; Don't touch your phone while driving.&#160; You can re-tweet that witty message you just read when you stop your car.&#160; </p>
<h3>Eating Or Drinking While Driving</h3>
<p>Taking your food with you and having your meal while knocking off those road miles may be convenient and save you a little time.&#160; But it can also distract you and eliminate the use of one or both hands while you're sipping your soft drink, digging in the bag for those last few french fries, or trying to wipe something you just spilled off of your clothes.&#160; Eating while driving isn't illegal in Iowa, but when doing so don't forget that your not sitting at a table somewhere.&#160;&#160;</p>
<h3>Adjusting Things Inside The Car</h3>
<p>Fiddling with the climate control, seat, music, on board display, mirrors, or any of the myriad other things that modern cars and trucks come equipped with can be a distraction.&#160; Again, your eyes may be off the road momentarily, plus you're using one of your hands to adjust things.&#160; It's better to make all necessary adjustments before beginning your trip or while stopped.&#160; While that may be easy to do for seats and mirrors, for things that require regular regular changes, like music, climate control, and other on board activity, ask a passenger (if you have one) to do that for you or use steering wheel controls, to the extent that your vehicle has them.&#160;</p>
<h3>Taking A Trip To Fantasy Land</h3>
<p>Maybe you have a lot on your mind.&#160; Or your well into a lengthy road trip and your thoughts start to wander.&#160; But back in reality your driving a car that surrounded by traffic, pedestrians, and changing road conditions.&#160; So if sense that you're becoming a daydeam believer, play some music, listen to the radio, or stop your vehicle, take a break, stretch and walk around for a bit.&#160;</p>
<h3>Passengers And Pets</h3>
<p>Passengers, especially children, can be a distraction, a point that was recently hammered home when a vehicle veered into the path of an oncoming truck and a young child died.&#160; So can pets that are loose in the vehicle.&#160; Both can move around, distract you from the road, and even interfere with vehicle operation, such as braking and steering.&#160; Therefore, for this and other obvious safety reasons, you should make sure that your passengers and pets are belted or other wise secure in the car.</p>
<h3>Checking Out The Scenery (Or Accidents)</h3>
<p>This one's difficult because you can't stop your car every time you see something scenic.&#160; But don't forget that there's a road in front of and around you while you're ogling some majestic vista as your motoring along.&#160; And for Pete's sake, don't contribute to a second accident while your driving past another one and you satisfy your morbid curiosity by focusing more on the crash than the road.</p>
<h3>Smoking</h3>
<p> Smoking may not be as common as it used to be, and its place in the pantheon of distracted driving causes is not what it once was, but there was a time when smoking while driving was one of the top causes of distracted driving.&#160; You possibly take your eyes of the road and occupy one or both hands while reaching for a cigarette and getting it out of the pack and lighting it.&#160; You occupy a hand while holding the cigarette (unless you keep it in your mouth the whole time and never ash it).&#160; And, similar to dropping food on your clothes while driving, if an ash from the cigarette falls on your clothes your first instinct will be to look down and occupy a hand to brush off the ashes. </p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Tue, 25 Mar 2014 06:00:00 +0000http://erbelaw.com/blog/posts/distracted-driving-it-s-about-more-than-texting-while-driving
Recovery Of Money Damages For Scarring<p><img data-rel="450x450" alt="021749 Doctor Gp Medical Hospital Stethoscope Generic" title="021749 Doctor Gp Medical Hospital Stethoscope Generic" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDMvNTUvNTkvOTY3LzAyMTc0OV9kb2N0b3JfZ3BfbWVkaWNhbF9ob3NwaXRhbF9zdGV0aG9zY29wZV9nZW5lcmljLmpwZyJdLFsicCIsInRodW1iIiwiNDUweDQ1MD4iXSxbInAiLCJzdHJpcCJdXQ/021749-doctor-gp-medical-hospital-stethoscope-generic.jpg" height="225" width="400" /></p>
<p>There are many different types of <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">personal injuries</a>.&#160; Personal injury law includes burns, brain injuries, bone fractures, soft tissue injuries, spinal cord damage, and eye injuries, among numerous others.&#160;&#160; Anyone suffering from those physical injuries can also experience significant physical pain and suffering and emotional distress.&#160; </p>
<p>Few injuries cause victims as much mental anguish as scars do.&#160; Scarring is an often permanent reminder to an injured person of the accident that caused the scarring, whether it was a <a title="Drunk Driving Accidents" href="/practice-areas/motor-vehicle-accidents/drunk-driving-accidents">drunk driving accident</a>, <a title="Boating Accidents" href="/practice-areas/personal-injurywrongful-death-law/boating-accidents">boating accident</a>, <a title="Motorcycle Accident Law" href="/practice-areas/motorcycle-accident-law">motorcycle accident</a>, <a title="Trucking Accidents" href="/practice-areas/motor-vehicle-accidents/trucking-accidents">truck accident</a>, <a title="Motor Vehicle Accidents" href="/practice-areas/motor-vehicle-accidents">car accident</a>, <a title="Dog Bite Law" href="/practice-areas/dog-bite-law">dog bite</a>, <a title="Fire And Explosion Law" href="/practice-areas/personal-injurywrongful-death-law/fire-and-explosion-law">fire or explosion</a>, <a title="Pedestrian Accidents" href="/practice-areas/personal-injurywrongful-death-law/pedestrian-accidents">pedestrian accident</a>, <a title="Bicycle Accidents" href="/practice-areas/personal-injurywrongful-death-law/bicycle-accidents">bicycle accident</a>, <a title="Train And Railroad Accident Law" href="/practice-areas/personal-injurywrongful-death-law/train-and-railroad-accident-law--3">train or railway accident</a>, or a <a title="Products Liability/Product Warranty Law" href="/practice-areas/products-liabilityproduct-warranty-law">defective or dangerous product</a>.&#160; If you or a loved on has suffered scarring because of an accident, you can seek fair monetary compensation for the physical pain and emotional suffering caused by scarring.</p>
<p>Facial scarring is a mark left on the skin after the skin has been wounded.&#160; A scar's severity is determined in part upon whether the injury is to the outer layer of the skin, the epidermis, or the thick layer of skin, the dermis.&#160; If the wound to the issue is limited to the skin's outer layer, the scar is likely not as severe as if the injury occurs to the thick layer of the skin. </p>
<p>A scar's healing process can depend upon the cause of the scar, the scar's severity, the injured person's age, and the scar's location on the body.&#160; The process of making a scar less noticeable is complex and lengthy.&#160; Scars often require numerous expensive procedures and reconstructive surgeries. </p>
<p>It's difficult to assign a monetary value to scarring's emotional effects on the victim.&#160; A scarred person may experience perceived or real negative reactions from other people.&#160; Scarring or disfigurement can also affect the injured person's relationships, perhaps even cause the loss of companionship of friends or loved ones.&#160; Scarring has been connected to psychological complications such as lowered self-esteem.&#160; </p>
<p>Judges and juries consider various factors when deciding damages for scarring victims. Certainly, the scar's visibility is a major factor in determining monetary compensation.&#160; Additionally, jury verdicts suggests that female scar victims are awarded higher damages than male scar victims.&#160; The victim's age is also a factor.&#160;&#160; Children tend to receive higher awards for their injuries, perhaps reflecting an awareness that younger victims must live with their permanent scars for longer than adult scarring victims. </p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>
Fri, 21 Mar 2014 07:23:00 +0000http://erbelaw.com/blog/posts/recovery-of-money-damages-for-scarring
The Rights And Duties Of Bicyclists Under Iowa Law<p><img data-rel="225x255" alt="20100317 091502 Crosswalk" title="20100317 091502 Crosswalk" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMzMvMDUvMzkzLzIwMTAwMzE3XzA5MTUwMl9DUk9TU1dBTEsuanBnIl0sWyJwIiwidGh1bWIiLCIyMjV4MjU1PiJdLFsicCIsInN0cmlwIl1d/20100317_091502_CROSSWALK.jpg" height="149" width="225" /></p>
<p>In my last <a target="_blank" title="http://erbe-law-firm.herokuapp.com/blog/posts/cars-and-pedestrians-can-t-we-all-just-get-along" href="http://erbe-law-firm.herokuapp.com/blog/posts/cars-and-pedestrians-can-t-we-all-just-get-along">post</a> I wrote about how Iowa law affects motor vehicles,<a title="Pedestrian Accidents" href="/practice-areas/personal-injurywrongful-death-law/pedestrian-accidents"> pedestrians</a>, and their interactions with each other.&#160; Bicyclists, who technically become pedestrians when they dismount and walk their bikes, also have certain rights and duties under Iowa law.&#160; Some of the laws specifically cover bicyclists; other laws generally apply to all traffic on the road, including bicycles.&#160; In general, the Iowa Code imposes the same rights and duties on bicyclists as it does motor vehicle operators, except for statutory rules that only apply to motor vehicles.</p>
<p>First, Iowa Code 321.281 specifically governs the actions of <a title="Motor Vehicle Accidents" href="/practice-areas/motor-vehicle-accidents">motor vehicle operators</a> against bicyclists:&#160; (1) A person operating a motor vehicle shall not steer the motor vehicle unreasonably close to or toward a person riding a bicycle on a highway, including the roadway or the shoulder adjacent to the roadway; and (2) a person shall not knowingly project any object or substance at or against a person riding a bicycle on a highway.&#160; Violation of this code section is a misdemeanor.&#160; </p>
<p>Second, the same rules that govern motor vehicle operators when they pass another vehicle equally apply to passing a bicycle, which is considered a vehicle for the Iowa Code sections that concern passing on roadways.&#160; Iowa Code 321.299 mandates that "the driver of a vehicle overtaking another vehicle proceeding in the same direction shall pass to the left thereof at a safe distance and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle."&#160; Iowa Code 321.302&#160; provides additional rules for passing:&#160; "(1) Unless otherwise prohibited by law, the driver of a vehicle on a roadway with unobstructed pavement of sufficient width for two or more lines of traffic moving in the same direction as the vehicle being passed may overtake and pass upon the right of another vehicle which is making or about to make a left turn when such movement can be made in safety; (2) unless otherwise prohibited by law, the driver of a vehicle may overtake and, allowing sufficient clearance, pass another vehicle proceeding in the same direction either upon the left or upon the right on a roadway with unobstructed pavement of sufficient width for four or more lines of moving traffic when such movement can be made in safety; and (3) the driver of a vehicle shall not drive off the pavement or upon the shoulder of the roadway or upon the apron or roadway of an intersecting roadway in overtaking or passing on the right or the left."</p>
<p>Third, Iowa Code 321.384 requires bicycles to have a headlamp and a taillight for use when it's dark and at <a target="_blank" title="http://erbelaw.wordpress.com/2011/11/18/choose-safety-over-savings-and-turn-on-your-headlights-when-conditions-require/" href="http://erbelaw.wordpress.com/2011/11/18/choose-safety-over-savings-and-turn-on-your-headlights-when-conditions-require/">other times when lights are necessary for visibility.</a>&#160; Iowa law mandates that all bicycles have a lamp on the front beaming a white light that's visible from at least three hundred feet to the front and a lamp on the rear on the rear of the bicycle exhibiting a red light visible from a distance of three hundred feet to the rear.&#160; A red reflector may be used instead of a rear light.</p>
<p>Finally, the hand signals that some bicyclists use are actually required by Iowa Code 321.318.&#160; A bicyclist's hand signals are supposed to be given from the left side of the bicycle.&#160; The Iowa Code recommends the basic bicycle hand signals that many cyclists are familiar with.</p>
<p>If there's a <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">personal injury or wrongful death</a> lawsuit because of a <a title="Bicycle Accidents" href="/practice-areas/personal-injurywrongful-death-law/bicycle-accidents">bicycle/vehicle accident</a>, an important issue will be each party's compliance with their respective Iowa Code obligations. Bicyclists who are hit while violating one of their obligations as a cyclist may find that their legal recovery is barred or significantly reduced through their own fault, as manifested through their failure to obey Iowa's bicyclist laws.&#160; And drivers who violate a rule of the road, especially Iowa Code 321.281 and its special protections for cyclists, are guaranteed to be found liable and face substantial money damage exposure, especially if they plead guilty to or are found guilty of a criminal offense related to the bicycle accident. </p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>
Wed, 19 Mar 2014 06:15:00 +0000http://erbelaw.com/blog/posts/the-rights-and-duties-of-bicyclists-under-iowa-law
Cars And Pedestrians -- Can't We All Just Get Along?<p><img data-rel="450x450" alt="Pedestrian" title="Pedestrian" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMjgvMjcvNjAvcGVkZXN0cmlhbi5qcGciXSxbInAiLCJ0aHVtYiIsIjQ1MHg0NTA%2BIl0sWyJwIiwic3RyaXAiXV0/pedestrian.jpg" height="197" width="450" /></p>
<p>With the weather warming, more people will be out walking and on bicycles.&#160; They'll be crossing streets in front of cars and <a title="Trucking Accidents" href="/practice-areas/motor-vehicle-accidents/trucking-accidents">trucks</a>, sometimes in a crosswalk, sometimes not.&#160; This is a good time to review Iowa law regarding the rights and duties of <a title="Pedestrian Accidents" href="/practice-areas/personal-injurywrongful-death-law/pedestrian-accidents">pedestrians</a>.&#160; Iowa Code sections 321.325-321.340 contains Iowa's rules concerning pedestrians and motor vehicles.</p>
<p>In areas where there are traffic signals (traffic lights, pedestrian walk/don't walk signs, etc.), Iowa Code 321.325 requires pedestrians to obey the signals, just like any car would have to.&#160; When there are no traffic lights, but pedestrians are still crossing in a marked crosswalk or at any intersection, Iowa Code 321.327 mandates that "the driver of a vehicle shall yield the right-of-way, slowing down or stopping if need be to so yield, to a pedestrian crossing the roadway within any marked crosswalk or within any unmarked crosswalk at an intersection."&#160; On the other hand, Iowa Code 321.328 requires pedestrians that cross outside of a marked crosswalk or an intersection to yield the right-of-way to motor vehicle traffic.&#160; But, regardless of whether a pedestrian is crossing legally or illegally, Iowa Code 321.329 states that "every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary and shall exercise due care upon observing any child or any confused or incapacitated person upon a roadway." &#160;&#160;</p>
<p>Truthfully, these laws get broken all the time.&#160; Pedestrians, especially children (which is why they get a special mention under Iowa Code 321.329), cross where they're not supposed to or when they're not supposed to.&#160; Drivers blast on by pedestrians when instead they should be stopping, yielding the right of way to the pedestrian, and allowing them to cross.&#160; Luckily, most of the time vehicles go past pedestrians without hitting them in situations in which one of them has broken the above rules. But when <a title="Motor Vehicle Accidents" href="/practice-areas/motor-vehicle-accidents">pedestrian/vehicle collisions</a> do occur, the unprotected pedestrian can often suffer <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">catastrophic, if not fatal, injuries.</a>
</p>
<p>If a lawsuit happens because of a pedestrian/vehicle accident, one major fight in the case will be both party's compliance with their respective Iowa Code obligations, summarized above.&#160; Pedestrians who are hit while crossing a street at an illegal place or at an illegal time may find that their legal recovery is barred or significantly reduced through their own fault, as manifested through their failure to obey Iowa's pedestrian laws.&#160; And drivers who fail to yield the right of way to a pedestrian and hit someone, especially in a marked crosswalk, are guaranteed to be found liable and face substantial money damage exposure, especially if they plead guilty to or are found guilty of a criminal offense related to the pedestrian accident. &#160; &#160; &#160; </p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Mon, 17 Mar 2014 07:00:00 +0000http://erbelaw.com/blog/posts/cars-and-pedestrians-can-t-we-all-just-get-along
Railroad Company Wins Railroad Crossing Death Case Without Taking It To Trial<p><img data-rel="225x255" alt="Northeast Regional At Miner Lane 1" title="Northeast Regional At Miner Lane 1" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMzYvMTUvNDE4L05vcnRoZWFzdF9SZWdpb25hbF9hdF9NaW5lcl9MYW5lXzEuSlBHIl0sWyJwIiwidGh1bWIiLCIyMjV4MjU1PiJdLFsicCIsInN0cmlwIl1d/Northeast_Regional_at_Miner_Lane_1.JPG" height="169" width="225" /></p>
<p>Recently, in <em>Haakenson v. Chicago Central &amp; Pacific Railroad Company</em>, the Iowa Court of Appeals upheld a rare trial court decision in which the trial judge decided that the plaintiff's fault for a <a title="Train And Railroad Accident Law" href="/practice-areas/personal-injurywrongful-death-law/train-and-railroad-accident-law--3">railroad crossing accident</a> was so obvious that there was no need to even have a jury trial.&#160; Instead, the court ruled, the defendant railroad company won the case without having to defend itself at trial.&#160; That's an unusual decision.&#160; Normally the issue of who's at fault for an <a title="Motor Vehicle Accidents" href="/practice-areas/motor-vehicle-accidents">accident</a> causing <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">personal injuries or wrongful death</a> is an issue that needs to be tried and submitted to a jury for fact determination.&#160; Having a judge make that decision short of a full trial is an uncommon event.&#160; So what went wrong for the plaintiffs in the <em>Haakenson</em> case?</p>
<p>The courts in this case applied the rule that a plaintiff can lose, even without a trial, when "the undisputed facts admit of a singular and inescapable conclusion that plaintiffs’ fault is greater than the combined fault of defendants."&#160; The train collision in <em>Haakenson </em>happened when a driver crashed into the side of a locomotive.&#160; The train and the driver had approached the railroad/road intersection at the same time.&#160; The truck driver was killed.&#160; </p>
<p>The driving conditions were good at the time of the accident.&#160; The day was clear.&#160; There was no precipitation.&#160; The county road was paved, clear, and dry.&#160; The truck driver, Haakenson, was driving at eight miles over the speed limit.&#160; The oncoming train was traveling at forty miles per hour, twenty miles below the speed limit for that area of the tracks.</p>
<p>The employees operating the train saw Haakenson’s truck approximately ten seconds before the collision.&#160; They sounded the locomotive horn to alert Haakenson.&#160; When Haakenson did not slow his truck, the employees sounded a series of short bursts of the locomotive whistle and horn&#160; in a final attempt to get his attention.&#160; When they realized that Haakenson’s vehicle was still not slowing, the employees applied the train’s emergency brake, but they could not slow the train in time and it still entered the intersection.&#160; Haakenson entered the railroad crossing and crashed into the side of the first locomotive.</p>
<p>There was no evidence that Haakenson attempted to change course, swerve, or attempt any maneuver to try to avoid the train.&#160; Nor was there any evidence that he tried to slow or stop his truck.&#160; No skid marks were found at the scene.&#160; The command module in the truck confirmed that Haakenson never braked and hit the train at sixty-three miles per hour, the same speed he'd been traveling while approaching the railroad crossing.</p>
<p>The courts decided that Haakenson could be found at fault, without a trial, and therefore his surviving family could lose the case, because all of this evidence showed that the train operators did nothing wrong and he did everything wrong.&#160; Approximately 700 feet before the railroad crossing was a visible sign warning that a crossing was ahead.&#160; Photographs of the area demonstrated that Haakenson would have had a constant, uninterrupted view of the train and crossbucks within at least the last 500 feet of the crossing, giving him more than enough time to stop had he exercised reasonable care.&#160; </p>
<p>In short, according to the Court of Appeals, "had Haakensen exercised reasonable care, he would have seen the sixteen-car train traveling perpendicular to him on a clear day and heard its warning whistles in sufficient time to avoid driving his truck directly and at full speed in to the side of the train."&#160; That was sufficient to absolve the railroad company of all possible liability for the collision and Haakenson's death without the need for a jury trial.&#160; An unusual decision, but one that's commonly reached in cases in which a vehicle crashes into the side of a train in a railroad crossing even though there were warning signs, hundreds of feet to see the train, and the train was sounding its whistle and horn.</p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Fri, 14 Mar 2014 07:12:00 +0000http://erbelaw.com/blog/posts/railroad-company-wins-railroad-crossing-death-case-without-taking-it-to-trial
Overtime Pay Rights Of First Responders<p><img data-rel="225x255" alt="Clock" title="Clock" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDUvMTAvNTkvODg1L2Nsb2NrLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/clock.jpg" height="207" width="225" /></p>
<p>In 2004 the United States Department of Labor extensively amended its interpretive regulations for federal overtime law.&#160; One such change was to make clear that police, fire fighters, and other types of "first responders" are normally entitled to overtime pay.&#160; The Department of Labor was concerned that the old regulations' silence regarding these types of workers had resulted in extensive litigation over whether certain classes of these employees were entitled to overtime or were instead exempt employees. &#160;Remember that “exempt” employees are not entitled to overtime, ever, no matter how many hours they work.&#160; The purpose behind the "First Responder" clarification was to clarify first responders' entitlement to overtime in most instances.&#160; </p>
<p> Since August 2004, the U.S. Department of Labor's position has been that the overtime exemptions "do not apply to police officers, detectives, deputy sheriffs, state troopers, highway patrol officers, investigators, inspectors, correctional officers, parole or probation officers, park rangers, fire fighters, paramedics, emergency medical technicians, ambulance personnel, rescue workers, hazardous materials workers and similar employees, regardless of rank or pay level, who perform work such as preventing, controlling or extinguishing fires of any type; rescuing fire, crime or accident victims; preventing or detecting crimes; conducting investigations or inspections for violations of law; performing surveillance; pursuing, restraining and apprehending suspects; detaining or supervising suspected and convicted criminals, including those on probation or parole; interviewing witnesses; interrogating and fingerprinting suspects; preparing investigative reports; or other similar work."</p>
<p>These types of employees usually do not qualify as exempt executives because management is not their primary duty.&#160; Nor can they be considered exempt administrative employees because their primary duty is not the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers.&#160; And the learned professional exemption is not applicable to such workers because their primary duty is not the performance of work requiring knowledge of an advanced type in a field or learning customarily acquired by a prolonged course of specialized intellectual instruction.&#160;</p>
<p>This is not to say that no employee in any of these occupations can ever be considered exempt.&#160; Overtime cases are always fact-intensive and each should be evaluated based on the employee's particular job duties.&#160; So it's certainly conceivable that in some circumstances a "first responder"-type employee will be considered exempt and not entitled to overtime.</p>
<p><a title="Overtime Law" href="/practice-areas/overtime-law">Overtime cases</a> require legal analysis of federal statutes, U.S. Department of Labor regulations, and court decisions. I can help you with any <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">employment law or labor law</a> questions that you might have. Please feel free to contact me if there's an employment law or labor law matter I can help you with.</p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Thu, 13 Mar 2014 07:34:00 +0000http://erbelaw.com/blog/posts/overtime-pay-rights-of-first-responders
Injuries Caused By Defective Carbon Monoxide Detectors<p><img data-rel="225x255" alt="Warning Sign Poison 83697.1362074642.1280.1280" title="Warning Sign Poison 83697.1362074642.1280.1280" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvNTgvMDMvOTY1L1dBUk5JTkdfU0lHTl9QT0lTT05fXzgzNjk3LjEzNjIwNzQ2NDIuMTI4MC4xMjgwLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/WARNING_SIGN_POISON__83697.1362074642.1280.1280.jpg" height="255" width="191" /></p>
<p>The Des Moines register recently <a target="_blank" title="http://www.desmoinesregister.com/article/20140305/NEWS/303050096/Des-Moines-couple-s-carbon-monoxide-device-pays-off-quicklyhttp://" href="http://www.desmoinesregister.com/article/20140305/NEWS/303050096/Des-Moines-couple-s-carbon-monoxide-device-pays-off-quicklyhttp://">reported</a> about a Des Moines family whose carbon monoxide detector saved them from carbon monoxide poisoning.&#160; Carbon monoxide detectors are certainly a <a target="_blank" title="http://erbelaw.wordpress.com/2011/11/08/feds-remind-you-to-change-batteries-in-smoke-and-carbon-monoxide-detectors/" href="http://erbelaw.wordpress.com/2011/11/08/feds-remind-you-to-change-batteries-in-smoke-and-carbon-monoxide-detectors/">valuable</a> safety item for your home because exposure to high concentrations of carbon monoxide can lead to serious illness and even death.&#160; Carbon monoxide detectors are intended to detect the presence of high levels of carbon monoxide, warn you of the high levels, and give you time to leave the area or ventilate it.</p>
<p>But what if the carbon monoxide detector doesn't work or malfunctions?&#160; A carbon monoxide detector does not good if it fails to warn you of the presence of dangerous levels of carbon monoxide.&#160; What are your rights to sue under a <a title="Products Liability/Product Warranty Law" href="/practice-areas/products-liabilityproduct-warranty-law">products liability</a> theory for <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">physical injuries, death</a>, or <a title="Insurance Law" href="/practice-areas/insurance-law">property damage</a> caused by a defective carbon monoxide detector?&#160;&#160;</p>
<p>The first question is what causes high, dangerous levels of carbon monoxide?&#160; Most homes have a minor trace of carbon monoxide in the air, primarily because of gas appliances.&#160; Gas appliances usually don’t cause dangerous levels of carbon monoxide in a home unless the appliance has a product defect, has been improperly maintained, or has been inadequately inspected or maintained.&#160; In addition to gas appliances, dangerous carbon monoxide levels can also stem from defective or malfunctioning space heaters, furnaces, fireplaces, and chimneys, especially in enclosed spaces.&#160; </p>
<p>The symptoms of carbon monoxide poisoning include dizziness, trouble breathing, and nausea.&#160; Unfortunately, those symptoms can be caused by other ailments and aren't always immediately recognized as caused by carbon monoxide poisoning.&#160; It's immediate to seek immediate medical attention if there's any concern that such symptoms are a possible sign of carbon monoxide poisoning.</p>
<p>Manufacturers of carbon monoxide detectors can be liable if the detector fails to work and provide an alarm.&#160; This is most commonly due to an issue with the detector's internal wiring.&#160; Sometimes a defective carbon monoxide detector fails to detect elevated carbon monoxide levels that it should detect.&#160; Other times the necessary detection is made but the alarm doesn't sound for some reason.&#160; Under either scenario the detector has failed to function as intended and the product manufacturer can be liable if it's at fault for that failure.</p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Mon, 10 Mar 2014 07:00:00 +0000http://erbelaw.com/blog/posts/injuries-caused-by-defective-carbon-monoxide-detectors
Are Television Reporters Entitled To Overtime Pay?<p><img data-rel="225x255" alt="Clock" title="Clock" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDUvMTAvNTkvODg1L2Nsb2NrLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/clock.jpg" height="207" width="225" /></p>
<p>One might think that television reporters are automatically exempt from <a title="Overtime Law" href="/practice-areas/overtime-law">federal overtime pay</a> requirements.&#160; You'd be wrong.&#160; Under certain circumstances, in fact most circumstances, television reporters are entitled to overtime pay when they work more than forty hours in a given workweek.&#160; That's true even if the reporter is paid a guaranteed salary.&#160; </p>
<p>Remember that “exempt” employees are not entitled to overtime, ever, no matter how many hours they work.&#160; The overtime exemption most often applied to television reporters is the "creative professional" exemption.&#160; I wrote about the professional exemption in an earlier blog <a target="_blank" title="http://erbelaw.wordpress.com/2013/01/03/the-professional-exemption-under-federal-overtime-law/" href="http://erbelaw.wordpress.com/2013/01/03/the-professional-exemption-under-federal-overtime-law/">post</a>.</p>
<p>The U.S. Department of Labor's overtime rule for the creative professional exemption specifically references television reporters:&#160; "Journalists may satisfy the duties requirements for the creative professional exemption if their primary duty is work requiring invention, imagination, originality or talent, as opposed to work which depends primarily on intelligence, diligence and accuracy. Employees of newspapers, magazines, television and other media are not exempt creative professionals if they only collect, organize and record information that is routine or already public, or if they do not contribute a unique interpretation or analysis to a news product. Thus, for example, newspaper reporters who merely rewrite press releases or who write standard recounts of public information by gathering facts on routine community events are not exempt creative professionals. Reporters also do not qualify as exempt creative professionals if their work product is subject to substantial control by the employer. However, journalists may qualify as exempt creative professionals if their primary duty is performing on the air in radio, television or other electronic media; conducting investigative interviews; analyzing or interpreting public events; writing editorials, opinion columns or other commentary; or acting as a narrator or commentator."&#160; </p>
<p>This federal regulation demonstrates that journalists’ duties can be considered nonexempt or exempt, depending on what the journalist does on a daily basis. The less creativity and originality involved in a journalist's work, especially when the employer exercises significant control over the final product, the less likely that journalist is to be ruled an exempt creative professional.&#160; Thus no universal overtime exemption exists for television reporters.&#160; As with most other occupations, each reporter's classification should be made on an individual basis.&#160; And, as with all exemptions, the U.S. Department of Labor has cautioned employers against classifying television reporters as exempt employees:&#160; "The majority of journalists, who simply collect and organize public information, or do not contribute a unique or creative interpretation or analysis, are not likely to be exempt."</p>
<p>The most famous overtime decision regarding television reporters is <em>Dalheim v. KDFW-TV</em>, a 1990 decision by the United States Court of Appeals for the Fifth Circuit.&#160; The appellate court upheld a federal trial court decision that KDFW's general assignment television reporters were not exempt creative professionals.&#160; The trial court reached that conclusion because "at KDFW, the emphasis was on 'good reporting, in the aggregate,' and not on individual reporters with the 'presence' to draw an audience.&#160; The district court found that the process by which reporters meld sound and pictures relies not upon the reporter's creativity, but upon her skill, diligence, and intelligence.&#160; More importantly, the district court found that '[r]eporters are told the story that the station intends they cover, what they are expected to shoot, and the intended angle or focus of the story."&#160; </p>
<p>The Fifth Circuit Court of Appeals agreed with the trial court that KDFW's general assignment reporters were not exempt creative professionals:&#160; "In essence, the district court found that KDFW failed to prove that the work constituting its reporters' primary duty is original or creative in character.&#160; The district court recognized, and we think correctly, that general-assignment reporters may be exempt creative professionals, and that KDFW's reporters did, from time to time, do original and creative work.&#160; Nevertheless, at KDFW, the approach reporters take to their day-to-day work is in large part dictated by management, and the stories they daily produce are neither analytic nor interpretive nor original.&#160; In neither form nor substance does a reporter's work 'depend[] primarily on [her] invention, imagination, or talent.' "</p>
<p>Overtime cases require legal analysis of federal statutes, U.S. Department of Labor regulations, and court decisions. &#160; I can help you with any <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">employment law or labor law</a> questions that you might have.&#160; Please feel free to contact me if there's an employment law or labor law matter I can help you with.</p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Fri, 07 Mar 2014 06:30:00 +0000http://erbelaw.com/blog/posts/are-television-reporters-entitled-to-overtime-pay
Truck Crash Kills Two Year-Old<p><img data-rel="225x255" alt="Truck" title="Truck" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMjIvMTAvMTgyL3RydWNrLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/truck.jpg" height="169" width="225" /></p>
<p>Correction:&#160; On March 6, 2014, the Des Moines Register published a <a target="_blank" title="http://www.desmoinesregister.com/article/20140305/NEWS/303050099/2-year-old-killed-in-crash-south-of-Indianola?Frontpage" href="http://www.desmoinesregister.com/article/20140305/NEWS/303050099/2-year-old-killed-in-crash-south-of-Indianola?Frontpage">correction</a> to its original story about the crash.&#160; It now appears that the mother crossed the center line into the path of the oncoming truck and was at fault for the crash.&#160; But the legal principles discussed in this blog post still generally apply to head-on collisions caused by center-line violations.&#160; </p>
<p>The Des Moines Register <a title="http://www.desmoinesregister.com/article/20140305/NEWS/303050099/2-year-old-killed-in-crash-south-of-Indianola?Frontpage" href="http://www.desmoinesregister.com/article/20140305/NEWS/303050099/2-year-old-killed-in-crash-south-of-Indianola?Frontpage">reports</a> today that a young child was <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">killed</a> when his mother's car was in a head-on collision with a truck on Highway 65 near Indianola.&#160; Police statements indicate that the <a title="Trucking Accidents" href="/practice-areas/motor-vehicle-accidents/trucking-accidents">truck driver</a> crossed the center line into the path of the oncoming car.&#160; A two year-old was killed in the <a title="Motor Vehicle Accidents" href="/practice-areas/motor-vehicle-accidents">crash</a> and his mother was taken to the hospital.</p>
<p>The accident happened approximately two miles of the the intersection of Highways 65 and 69.&#160; Highway 65 in the Indianola area is a stretch of road that certainly requires extra caution.&#160; In both directions, that two-lane portion of Highway 65 is a dangerous mix of curves, hills, small residential areas and towns where the speed limit is lowered from highway speeds before rising again, schools, and what seems to be a constant presence of gravel at intersections from nearby farm operations.</p>
<p>None of that excuses crossing the center line, especially while operating a large tractor trailer truck.&#160; It'll be interesting to see what led to the crash and whether any of the common <a title="Trucking Accidents" href="/practice-areas/motor-vehicle-accidents/trucking-accidents">causes of truck crashes</a> were present.&#160; Certainly something went very wrong since the truck was far enough into the incoming lane to cause a head-on collision.</p>
<p>The Register story didn't mention whether the truck driver was cited for crossing the center line.&#160; He should be.&#160; Iowa Code 321.297 mandates that "1. A vehicle shall be driven upon the right half of the roadway upon all roadways of sufficient width, except as follows:&#160; (a) When overtaking and passing another vehicle proceeding in the same direction under the rules governing such movement.&#160; (b) When an obstruction exists making it necessary to drive to the left of the center of the roadway, provided, any person so doing shall yield the right-of-way to all vehicles traveling in the proper direction upon the unobstructed portion of the roadway within such distance as to constitute an immediate hazard.&#160; (c) Upon a roadway divided into three marked lanes for traffic under the rules applicable thereon.&#160; (d) Upon a roadway restricted to one-way traffic."&#160; That would constitute <a target="_blank" title="http://erbelaw.wordpress.com/2013/01/11/violating-the-rules-of-the-road-may-cost-you-more-than-a-traffic-ticket/" href="http://erbelaw.wordpress.com/2013/01/11/violating-the-rules-of-the-road-may-cost-you-more-than-a-traffic-ticket/">"negligence per se"</a> and allow the mother and the family to sue for <a target="_blank" title="http://erbelaw.wordpress.com/2013/11/19/remedies-for-injury-to-or-death-of-a-spouse-under-iowa-law/" href="http://erbelaw.wordpress.com/2013/11/19/remedies-for-injury-to-or-death-of-a-spouse-under-iowa-law/">her injuries</a> and the injuries to and death of their <a target="_blank" title="http://erbelaw.wordpress.com/2013/11/19/loss-of-consortium-claims-involving-children-and-personal-injury-or-wrongful-death/" href="http://erbelaw.wordpress.com/2013/11/19/loss-of-consortium-claims-involving-children-and-personal-injury-or-wrongful-death/">child</a>.</p>
<p>Actually, the family could sue the truck driver and his trucking company for <a title="Motor Vehicle Accidents" href="/practice-areas/motor-vehicle-accidents">negligence</a> even if he doesn't receive a ticket for crossing the center line.&#160; They'd just have to do more work to prove negligence because without a traffic ticket a finding of negligence isn't automatic.&#160; The defendants would be allowed to argue various defenses in an attempt to prove that something outside the truck driver's control caused the truck to cross the center line and slam into the oncoming vehicle.</p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Wed, 05 Mar 2014 13:26:00 +0000http://erbelaw.com/blog/posts/truck-crash-kills-two-year-old
Safety Tips For Exterior Spring Maintenance And Cleaning<p><img data-rel="225x255" alt="John Deere Lawn Mower" title="John Deere Lawn Mower" src="/system/images/W1siZiIsIjIwMTQvMDIvMjUvMjAvMTUvMjUvMTM3L0pvaG5fRGVlcmVfbGF3bl9tb3dlci5KUEciXSxbInAiLCJ0aHVtYiIsIjIyNXgyNTU%2BIl0sWyJwIiwic3RyaXAiXV0/John_Deere_lawn_mower.JPG" height="169" width="225" /></p>
<p>Contrary to outside appearances and temperatures, the astronomical date for Spring is March 20, less than a month away.&#160; Now that may not mean much in the real world (weather and temperatures don't seem to care much about the calendar date), but it is a sign that the snow, ice, and mud will soon be gone, leaving behind a long list of yardwork and other exterior cleanup and maintenance.&#160; Particularly in colder regions of the country, springtime is traditionally a period of greater use of power equipment and tools as property owners try to fix or clean up all the issues and debris that winter left behind.&#160; That likewise means a higher incidence of <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">injuries</a>, <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">death</a>, and <a title="Insurance Law" href="/practice-areas/insurance-law">insurance claims</a> caused by <a title="Products Liability/Product Warranty Law" href="/practice-areas/products-liabilityproduct-warranty-law">equipment</a>, <a title="Fire And Explosion Law" href="/practice-areas/personal-injurywrongful-death-law/fire-and-explosion-law">tools</a>, and <a title="Fire And Explosion Law" href="/practice-areas/personal-injurywrongful-death-law/fire-and-explosion-law">fires and explosions</a>.&#160; Here are a few steps you can take to minimize your risk of injury: </p>
<h3>Working With Tools, Paint, And Chemicals</h3>
<p>Be careful and take precautions when using chemical strippers. Chemical strippers are flammable and hazardous.</p>
<p>Read and follow all label instructions and work in a well ventilated area when using paint or chemicals.</p>
<p>Wear protective gloves that are appropriate for the product your using.&#160; Oftentimes that means wearing more than just protective latex gloves. </p>
<p>Use eye protection since almost any chemical can cause serious, even permanent, damage to the eyes, including burns and blindness.</p>
<p>Do not use use chemicals near an open flame.</p>
<p>Do not smoke while using chemicals.</p>
<p>Observe proper storage of chemical products when finished.</p>
<p>Observe proper storage or disposal of rags or cloths used with the chemicals when finished.</p>
<h3>Outdoors</h3>
<p>Read the operating instructions and all warnings for any outdoor equipment your using.</p>
<p>Don't disable any of your outdoor equipment's safety features.</p>
<p>Know how to quickly stop the equipment.&#160; </p>
<p>Don't leave running equipment unattended.</p>
<p>Be careful of debris, including rocks, twigs, branches, or anything that could be caught up in the mower and flung in your direction at high speed.&#160; You may need to clear your lawn of such materials before mowing.</p>
<p>Wear proper clothing when mowing or trimming your lawn. </p>
<p>Be careful when mowing on slopes to avoid tipping over or losing control of your push or riding mower.</p>
<p>Refueling your equipment requires special care because of the risk of fire.&#160; To avoid fire, only refuel your equipment when the engine is off and has cooled.&#160; Immediately clean up any spilled gasoline.</p>
<h3>Ladder Safety</h3>
<p>Along with lawnmowers and grass trimmers, ladders are a very common part of any home exterior projects.</p>
<p>Inspect your ladder before using it for any loose or damaged hinges, steps, or braces.</p>
<p>Ensure that your ladder's long enough and sturdy enough for the job.&#160; </p>
<p>Place the ladder on a solid, level, nonslippery surface. If using the ladder on soft ground, you can place wood planks under the ladder's legs to steady it.&#160; Have someone stand below to help steady the ladder if necessary.</p>
<p>Face the ladder when climbing or descending. </p>
<p>Keep both hands free when climbing or descending.&#160; Put any tools you need in a pocket or toolbelt.</p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Mon, 03 Mar 2014 06:00:00 +0000http://erbelaw.com/blog/posts/safety-tips-for-exterior-spring-maintenance-and-cleaning
Required Employer Notices Under The Family And Medical Leave Act<p><img data-rel="450x450" alt="021749 Doctor Gp Medical Hospital Stethoscope Generic" title="021749 Doctor Gp Medical Hospital Stethoscope Generic" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDMvNTUvNTkvOTY3LzAyMTc0OV9kb2N0b3JfZ3BfbWVkaWNhbF9ob3NwaXRhbF9zdGV0aG9zY29wZV9nZW5lcmljLmpwZyJdLFsicCIsInRodW1iIiwiNDUweDQ1MD4iXSxbInAiLCJzdHJpcCJdXQ/021749-doctor-gp-medical-hospital-stethoscope-generic.jpg" height="225" width="400" /></p>
<p>The <a title="Family And Medical Leave Act Law" href="/practice-areas/employment-labor-law/family-and-medical-leave-act-law">FMLA</a> requires communication between employers and their employees.&#160; One aspect of that communication is various notices that employers are required to provide.&#160; Employers that are covered under the FMLA must give employees certain notices regarding the FMLA.&#160; An employer's failure to give all required FMLA notices may give rise to <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">employment law</a> claims against the employer under the FMLA.</p>
<p>First, all covered employers have to post a general notice concerning the FMLA.&#160; The poster provides information similar to that given on our firm's FMLA Law webpage. &#160;The poster must be displayed in a conspicuous place, like a break room or other common gathering area, where employees and applicants for employment can read it.&#160;&#160; Second, employers with employees who become eligible for FMLA time must provide the employee with an additional general FMLA notice that contains language similar or identical to that found on the FMLA poster (this notice may be provided in the employee handbook or in other written material given to the employee when the employee makes an FMLA leave request), tell the employee about the employee's eligibility status and FMLA rights and responsibilities, and notify the employee whether the requested leave will be covered by the FMLA and the amount of time that'll be deducted from the employee's FMLA leave entitlement.</p>
<p>An employee's FMLA eligibility is determined, and the employer must provide notice of FMLA eligibility status to the employee, the first time the employee requests FMLA leave in the rolling 12-month leave period.&#160; The eligibility notice may be written or verbal.&#160; Regardless of the notice's format, it must be given to the employee within five business days of the initial FMLA leave request or when the employer acquires knowledge that an employee leave may be for an FMLA-qualifying reason, inform the employee of the employee's eligibility for FMLA protection, and explain why the employee is not eligible for FMLA time is that's the employer's determination.</p>
<p>Every time an employer is required to give an FMLA eligibility notice to an employee, it's also required to provide the employee with a "rights and responsibilities notice."&#160; The FMLA rights and responsibilities notice is intended to educate employees about their obligations regarding FMLA leave and the possible consequences of shirking any of those obligations.&#160; The rights and responsibilities notice must be written.&#160; This notice must include, when applicable, a notice that the leave may be eligible for FMLA protection, the beginning and end of the rolling 12-month period for the employee's FMLA leave entitlement, any requirements for the employee to provide an FMLA certification and the possible consequences if the employee fails to provide an FMLA certification, information regarding the use of paid leave versus unpaid leave, information concerning continuation of health benefits while on FMLA leave, and the employee's right to job restoration upon return from the FMLA absence.</p>
<p>Employers must also provide their employees with written "designation notices" once a decision about FMLA eligibility has been made.&#160; A designation notice has to be given to the employee within five business days of the date that the employer has enough information to determine whether the leave is eligible for FMLA protection.&#160; A designation also has to state the employer's determination of the employee's FMLA eligibility, give notice of whether the employee will be required to use paid leave to cover the FMLA absence, and identify the amount of FMLA time that will be deducted from the employee's FMLA entitlement.&#160; If the employer determines that the employee is not eligible for FMLA leave, nothing more is required for the designation notice than a written statement that the leave does not qualify for FMLA protection and will not be designated as FMLA leave.</p>
<p>An employer's failure to comply with all applicable notice requirements may constitute interference with, restraint, or denial of the exercise of an employee’s FMLA rights and expose the employer to liability under the Family and Medical Leave Act.&#160; Please visit our <a title="Family And Medical Leave Act Law" href="/practice-areas/employment-labor-law/family-and-medical-leave-act-law">Family And Medical Leave Act </a>page for additional information or contact us if you have an FMLA situation that you'd like to discuss.</p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Fri, 28 Feb 2014 08:00:00 +0000http://erbelaw.com/blog/posts/required-employer-notices-under-the-family-and-medical-leave-act
Negligent Security Claims Against Businesses<p><img data-rel="225x255" alt="Glock17handgun Ken Lunde" title="Glock17handgun Ken Lunde" src="/system/images/W1siZiIsIjIwMTQvMDIvMjEvMTgvMzAvNTIvNDcxL2dsb2NrMTdoYW5kZ3VuX0tlbkx1bmRlLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/glock17handgun-KenLunde.jpg" height="126" width="225" /></p>
<p>Under Iowa <a title="Premises Liability Law" href="/practice-areas/personal-injurywrongful-death-law/premises-liability-law">premises liability</a> law, businesses such as retail stores, parking garages, commercial properties, shopping malls, casinos, airports, amusement parks, hospitals, nightclubs and bars, schools and universities, and rental properties can be found responsible for <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">personal injuries or wrongful death</a> caused by criminal activity, such as assaults, robberies, and homicides, on the property.&#160; Such claims are brought under the theory that business owners have an obligation to provide necessary security for the protection of people lawfully on the property.&#160; Failure to provide such security can constitute negligence and expose the property owner to legal liability.</p>
<p>Iowa premises liability law requires business owners to protect lawful visitors from dangerous conditions on the property.&#160; Criminal activity is a type of dangerous condition recognized under Iowa law.&#160; The business may be liable for criminal activity if the victim proves that the business knew or in the exercise of reasonable care should have known of the potential for criminal activity on the premises and that it involved an unreasonable risk of injury to a person in the victim's position.&#160;&#160;</p>
<p>A common example of such prior knowledge on the part of a business owner is when there's a history of crime in the area.&#160; That may trigger the property owner's legal duty to protect visitors to the property, such as by installing security cameras or hiring security guards.&#160; Other examples of negligent security claims include insufficient lighting and inadequate locks on doors and windows.&#160;</p>
<p>Negligent security cases encompass many possible situations.&#160; The victim could be a customer leaving or entering a business or inside the business shopping.&#160; The victim could be an employee inside of a business closing it up at night or opening it first thing in the morning.&#160; Perhaps a delivery person.&#160; Or someone walking to or from their car in a parking garage.&#160; Maybe someone entering or leaving an apartment building or who is inside one of the apartments as a resident or visitor.&#160; Please contact us if you have a negligent security case you'd like to discuss. </p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Wed, 26 Feb 2014 06:30:00 +0000http://erbelaw.com/blog/posts/negligent-security-claims-against-businesses
Insurance Companies And The Duty To Defend<p><img data-rel="225x255" alt="Insurance 290x230" title="Insurance 290x230" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMTMvNDgvMzg0L2luc3VyYW5jZV8yOTB4MjMwLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/insurance-290x230.jpg" height="179" width="225" /></p>
<p>You're not always trying to use your <a title="Insurance Law" href="/practice-areas/insurance-law">insurance policy</a> to recover money because of an<a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law"> injury to you</a> or your property.&#160; Sometimes you need your insurance company to protect and defend you, including hiring a defense attorney, against a claim brought by someone else against you because of a <a title="Motor Vehicle Accidents" href="/practice-areas/motor-vehicle-accidents">car accident</a>, <a title="Motorcycle Accident Law" href="/practice-areas/motorcycle-accident-law">motorcycle accident</a>, or other type of accident, such as those involving <a title="Boating Accidents" href="/practice-areas/personal-injurywrongful-death-law/boating-accidents">boats</a>, <a title="Products Liability/Product Warranty Law" href="/practice-areas/products-liabilityproduct-warranty-law">products liability</a>, <a title="Trucking Accidents" href="/practice-areas/motor-vehicle-accidents/trucking-accidents">trucks</a>, <a title="Train And Railroad Accident Law" href="/practice-areas/personal-injurywrongful-death-law/train-and-railroad-accident-law--3">trains</a>, <a title="Drunk Driving Accidents" href="/practice-areas/motor-vehicle-accidents/drunk-driving-accidents">drunk driving</a>, <a title="Pedestrian Accidents" href="/practice-areas/personal-injurywrongful-death-law/pedestrian-accidents">pedestrians</a>, <a title="Premises Liability Law" href="/practice-areas/personal-injurywrongful-death-law/premises-liability-law">premises liability</a>, <a title="Dog Bite Law" href="/practice-areas/dog-bite-law">dog bites</a>, or <a title="Fire And Explosion Law" href="/practice-areas/personal-injurywrongful-death-law/fire-and-explosion-law">fires or explosions</a>.&#160; So when does your insurance company have a duty to defend you against such claims?</p>
<p>The starting point of this analysis, as it is with any insurance coverage dispute, is your insurance policy's language.&#160; It often doesn't matter what coverage you think you have; what's important is what your insurance policy actually states.&#160; So if you injure someone or their property but the circumstances of the injury aren't covered by your insurance policy, your insurance company is unlikely to have a duty to defend you against a claim brought by the injured party.</p>
<p>Under Iowa law, an insurer has a duty to defend whenever there is potential or possible coverage for the loss based upon the facts appearing at the outset of the case.&#160; Although courts usually look first and primarily to the lawsuit against you for the facts, it's sometimes necessary to expand the scope of inquiry to other facts that don't appear in the lawsuit itself. &#160; So in considering whether it has a duty to defend, an insurer should consider both the allegations in the underlying complaint and those facts that are known to it concerning the claim.&#160; </p>
<p>Whether a duty to defend exists depends of the substance of the underlying allegations, rather than any specific theory of liability expressed.&#160; A commonly expressed legal rule is that insurance coverage is predicated on the assessment of the risk involved should the insured participate in a particular type of conduct and not the risk of the plaintiff’s choice of legal theories, meaning that your conduct leading to the loss, and not the label the plaintiff puts on the claims asserted against you in the lawsuit, is what's important.&#160; On the other hand, an insurer is not required to provide a defense when no facts presently available to it indicate coverage of the claim, merely because such facts might later be added by amendment or introduced as evidence at the trial.&#160;</p>
<p>Oftentimes it's not entirely clear whether the claims asserted against you are covered under your insurance policy.&#160; It follows that it's frequently unclear whether your insurance company has a duty to defend you.&#160; In such situations, insurance companies will commonly exercise a "reservation of rights."&#160; A reservation of rights allows an insurer to agree to defend an insured against a claim or suit while simultaneously retaining the ability to evaluate, or even later reject, coverage for some or all of the claims alleged against you by the plaintiff.&#160; The reservation of rights gives the insurer the ability to fulfill its obligation under the policy to provide a defense and hire a lawyer for you while simultaneously protecting itself by carrying on an investigation that could allow it to later deny coverage.</p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Mon, 24 Feb 2014 07:47:00 +0000http://erbelaw.com/blog/posts/insurance-companies-and-the-duty-to-defend
Bar Liability For Bar Fights And Attacks<p><img data-rel="225x255" alt="Img 0509" title="Img 0509" src="/system/images/W1siZiIsIjIwMTQvMDIvMjEvMDUvNTEvMTEvNTgwL0lNR18wNTA5LmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/IMG_0509.jpg" height="255" width="191" /></p>
<p>Bars are a place where many people are often gathered in the same area. Oftentimes they've been drinking, sometimes a lot, sometimes a little. It's a recipe for trouble.&#160; Bars face significant exposure for <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">personal injuries or wrongful death</a> caused by <a title="Drunk Driving Accidents" href="/practice-areas/motor-vehicle-accidents/drunk-driving-accidents">alcohol-related accidents</a> involving <a title="Motor Vehicle Accidents" href="/practice-areas/motor-vehicle-accidents">cars</a>, <a title="Trucking Accidents" href="/practice-areas/motor-vehicle-accidents/trucking-accidents">trucks</a>, <a title="Motorcycle Accident Law" href="/practice-areas/motorcycle-accident-law">motorcycles</a>, <a title="Bicycle Accidents" href="/practice-areas/personal-injurywrongful-death-law/bicycle-accidents">bicycles</a>, <a title="Pedestrian Accidents" href="/practice-areas/personal-injurywrongful-death-law/pedestrian-accidents">pedestrians</a>, <a title="Train And Railroad Accident Law" href="/practice-areas/personal-injurywrongful-death-law/train-and-railroad-accident-law--3">trains and railroad crossings</a>, and <a title="Boating Accidents" href="/practice-areas/personal-injurywrongful-death-law/boating-accidents">boats</a>.&#160; But that's not bars' only potential liability.&#160; They can also face <a title="Premises Liability Law" href="/practice-areas/personal-injurywrongful-death-law/premises-liability-law">premises liability</a> claims for attacks or fights that occur on their property, even if the attack or fight is not alcohol-related.</p>
<p>A bar can be liable under Iowa's dram shop law if it overserves alcohol to a patron and that patron gets into a fight and hurts someone.&#160; For that liability to attach it must be proved that the bar knew or should have known that the patron was intoxicated or knew or should have known that it was serving alcohol to the point that the patron would become intoxicated. &#160;A bar “knew or should have known” that a patron would become intoxicated or was intoxicated if the bar's employees either had actual knowledge that the person served was intoxicated or that a reasonably observant person under the same or similar circumstances would have had knowledge that the patron was intoxicated.&#160; A person is “intoxicated” when one or more of the following are true: (1) the person's reason or mental ability has been affected; (2) the person's judgment is impaired; (3) the person's emotions are visibly excited; and (4) the person has, to any extent, lost control of bodily actions or motions.&#160;</p>
<p>Frequently, however, bars will argue that the alcohol served the patron did not "contribute" to the bar fight and the other patron's injuries. &#160;In bar fight cases, the animosity between the people involved in the fight, and not anyone's intoxication, is often determined to be the true cause of the fight and any injuries.&#160;&#160; The bar will not be liable under Iowa's dram shop law if that's the conclusion in court.</p>
<p>Now, that's not to say that a bar can't still be liable for fights or attacks on its property under other legal theories.&#160; A common premises liability claim asserted against bars, which has nothing to do with alcohol, concerns inadequate security.&#160; Bars, like any other business, have a duty to keep patrons safe.&#160; That obligation extends to situations involving customers or just people in the bar who, for any reason, may be a danger to other customers.&#160; So, using the bar fight example, a bar may be liable for negligence under a premises liability theory if its employees knew or should have known that a person on the property was acting aggressively and thus represented a clear danger that someone could get hurt by that person in a fight.&#160;</p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Fri, 21 Feb 2014 05:40:00 +0000http://erbelaw.com/blog/posts/bar-liability-for-bar-fights-and-attacks
The Overtime Exemption For Employees Of Amusement Or Recreational Establishments<p><img data-rel="225x255" alt="Clock" title="Clock" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDUvMTAvNTkvODg1L2Nsb2NrLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/clock.jpg" height="207" width="225" /></p>
<p>Federal overtime law does not apply to all types of occupations.&#160; Certain fields of employment are entirely excluded from federal overtime requirements.&#160; One such occupation is seasonal amusement or recreational employees.</p>
<p>The federal overtime law provides an exemption from the minimum wage and overtime provisions of the FLSA for "any employee employed by an establishment which is an amusement or recreational establishment, if (A) it does not operate for more than seven months in any calendar year, or (B) during the preceding calendar year, its average receipts for any six months of such year were not more than 33-1/3 per centum of its average receipts for the other six months of such year."&#160; That exemption creates two possibilities for an amusement or recreational establishment to avoid paying its employees overtime:</p>
<p><strong>"Does not operate for more than seven months in any calendar year":</strong>&#160; The issue of whether an amusement or recreational establishment "operates" during a particular month depends on it's operations during that month.&#160; Many recreational or amusement establishments have "off seasons" during which employees are still working but the establishment is not open to the general public for recreational or amusement activities.&#160; Instead the establishment is engaging in maintenance, expansion, administration, and other business activities.&#160; During such months a recreational or amusement establishment is not considered to be operating as such for purposes of this overtime exemption.&#160; </p>
<p><strong>33-1/3 % Test:</strong>&#160; Because the language of the statute refers to receipts for any six months (not necessarily consecutive months), the monthly average based on total receipts for the six individual months in which the receipts were smallest should be tested against the monthly average for six individual months when the receipts were largest to determine whether this test is met.</p>
<p>Also note the important concept of being "employed by" an amusement or recreational establishment.&#160; Not everyone who works at such an establishment is necessarily employed by it.&#160; Examples include entertainers or concession stand employees who may be at the establishment by actually have a different employer, such as an entertainment company or a concessions provider.&#160; Moreover, employees who assist with the central functions of a chain of recreational or amusement establishments, such as administrative employees in a corporate office or workers in a warehouse or garage, are not included within the exemption for employees of amusement or recreational establishments.</p>
<p><a title="Overtime Law" href="/practice-areas/overtime-law">Overtime cases</a> require legal analysis of federal statutes, U.S. Department of Labor regulations, and court decisions. I can help you with any <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">employment law or labor law</a> questions that you might have. Please feel free to contact me for a free initial consultation about employment law or labor law. </p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Thu, 20 Feb 2014 14:02:00 +0000http://erbelaw.com/blog/posts/the-overtime-exemption-for-employees-of-amusement-or-recreational-establishments
Recovery Of Loss Of Earning Capacity Damages In Physical Injury Cases <p><img data-rel="450x450" alt="021749 Doctor Gp Medical Hospital Stethoscope Generic" title="021749 Doctor Gp Medical Hospital Stethoscope Generic" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDMvNTUvNTkvOTY3LzAyMTc0OV9kb2N0b3JfZ3BfbWVkaWNhbF9ob3NwaXRhbF9zdGV0aG9zY29wZV9nZW5lcmljLmpwZyJdLFsicCIsInRodW1iIiwiNDUweDQ1MD4iXSxbInAiLCJzdHJpcCJdXQ/021749-doctor-gp-medical-hospital-stethoscope-generic.jpg" height="225" width="400" /></p>
<p>Permanent physical injuries from <a title="Motor Vehicle Accidents" href="/practice-areas/motor-vehicle-accidents">car accidents</a>, <a title="Motorcycle Accident Law" href="/practice-areas/motorcycle-accident-law">motorcycle accidents</a>, and other types of <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">accidents</a>, such as those involving <a title="Pedestrian Accidents" href="/practice-areas/personal-injurywrongful-death-law/pedestrian-accidents">pedestrians</a>, <a title="Train And Railroad Accident Law" href="/practice-areas/personal-injurywrongful-death-law/train-and-railroad-accident-law--3">bicycles</a>, <a title="Train And Railroad Accident Law" href="/practice-areas/personal-injurywrongful-death-law/train-and-railroad-accident-law--3">trains and railroad crossings</a>, <a title="Premises Liability Law" href="/practice-areas/personal-injurywrongful-death-law/premises-liability-law">premises liability</a>, <a title="Boating Accidents" href="/practice-areas/personal-injurywrongful-death-law/boating-accidents">boats</a>, <a title="Products Liability/Product Warranty Law" href="/practice-areas/products-liabilityproduct-warranty-law">products liability</a>, <a title="Trucking Accidents" href="/practice-areas/motor-vehicle-accidents/trucking-accidents">trucks</a>, <a title="Drunk Driving Accidents" href="/practice-areas/motor-vehicle-accidents/drunk-driving-accidents">drunk driving</a>, or <a title="Fire And Explosion Law" href="/practice-areas/personal-injurywrongful-death-law/fire-and-explosion-law">fires or explosions</a>, can cause more than just future medical expenses and pain and suffering.&#160; Permanent injuries can also affect your ability to work and earn money in the future, perhaps causing you to reduce your working hours or leave your current job completely.&#160; In such situations Iowa law allows you to recover damages for your loss of future earning capacity.&#160;</p>
<p>The impairment to future earning capacity is measured by the reduction in the value of the power to earn.&#160; Damages for loss of future earning capacity are determined by the difference between the value of an individual's services, if working, as the person would've been but for the injury, and the value of the services of an injured person, if working, in the future. &#160; Impairment of physical capacity creates a presumption of lessened earning ability in the future.&#160; There is no fixed rule for estimating the amount of damages for loss of future earning capacity.&#160; Among the factors a jury may consider in awarding impairment of earning capacity is the plaintiff's past earnings.</p>
<p>Your medical records, deposition, and the other information you provide as part of your legal claim will be the starting point for analysis of your lost earning capacity.&#160; Pertinent information includes your education and training, work and wage history, physical issues before the accident, and your physical issues after the accident and how they have affected your daily life and your ability to work or work as much or as fast as you did before the injury.&#160; People need to know about you and your background before they can begin evaluating the monetary value of your lost earning capacity. </p>
<p>You'll need assistance from your doctors to prove loss of earning capacity.&#160; A doctor needs to evaluate whether you have a permanent injury.&#160; It's common in this regard for doctors to assign an "impairment rating," a percentage that describes the degree of your physical impairment caused by the permanent injury in relation to your normal bodily status and functionality, meaning the amount that it'll restrict you in certain physical activities.&#160; The impairment rating can in turn be used to evaluate your "disability," which is the physical consequences of the impairment.&#160; </p>
<p>A vocational expert witness is also often used to help prove loss of earning capacity.&#160; A vocational expert can provide an actual present day monetary value for your lost earning capacity.&#160; Vocational experts consider a number of factors in arriving at that figure.&#160; The information provided by your doctor, described above, is used.&#160; Private and government research and statistics about the labor force are consulted too.&#160; A vocational expert will normally also meet with you to conduct written and physical testing that provides additional information relevant to the earning capacity analysis.&#160; In the end, using all of that information the vocational expert will calculate a percentage that your earning capacity has been diminished because of your physical injuries.&#160; Applying that percentage against what you would have been expected to earn were you fully functional and worked through the remainder of your natural working life, the vocational expert is then able to calculate a dollar value for your lost earning capacity.&#160; &#160; &#160;&#160; &#160; </p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Thu, 20 Feb 2014 12:50:00 +0000http://erbelaw.com/blog/posts/recovery-of-loss-of-earning-capacity-damages-in-physical-injury-cases
Determining The Amount Of Your Loss For A Property Damage Insurance Claim<p><img data-rel="225x255" alt="Insurance 290x230" title="Insurance 290x230" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMTMvNDgvMzg0L2luc3VyYW5jZV8yOTB4MjMwLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/insurance-290x230.jpg" height="179" width="225" /></p>
<p>The amount of your loss is a common issue when you seek compensation or coverage for <a title="Insurance Law" href="/practice-areas/insurance-law">property damage</a> caused by various insured events, including <a title="Motor Vehicle Accidents" href="/practice-areas/motor-vehicle-accidents">car accidents</a>, <a title="Motorcycle Accident Law" href="/practice-areas/motorcycle-accident-law">motorcycle accidents</a>, and other types of <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">accidents</a>, such as those involving <a title="Boating Accidents" href="/practice-areas/personal-injurywrongful-death-law/boating-accidents">boats</a>, <a title="Products Liability/Product Warranty Law" href="/practice-areas/products-liabilityproduct-warranty-law">products liability</a>, <a title="Trucking Accidents" href="/practice-areas/motor-vehicle-accidents/trucking-accidents">trucks</a>, <a title="Train And Railroad Accident Law" href="/practice-areas/personal-injurywrongful-death-law/train-and-railroad-accident-law--3">trains</a>, <a title="Drunk Driving Accidents" href="/practice-areas/motor-vehicle-accidents/drunk-driving-accidents">drunk driving</a>, or <a title="Fire And Explosion Law" href="/practice-areas/personal-injurywrongful-death-law/fire-and-explosion-law">fires or explosions</a>.&#160; Your property insurance policy will commonly allow you to recover compensation for actual cash value or replacement costs of the lost or damaged property, whichever is less.&#160; But how are those numbers determined?&#160;</p>
<p>Courts have recognized various tests to determine actual cash value.&#160; When the property’s market value is easily determined, actual cash value is the equivalent of the property’s market value.&#160; The market value rule pertains to goods, including crops.&#160; Actual cash value of property depends upon the nature of the property insured, the property’s condition, the property’s intrinsic value, and other circumstances existing at the time of the loss.&#160; Under the market value test, the sole consideration is what a willing buyer would give and what a willing seller would take for the property on a cash sale in the free open market. </p>
<p>Another possible test for determining actual cash value is the “broad evidence rule.”&#160; Under that rule the court considers every fact and circumstance relevant to the estimate of the loss.&#160; Any evidence logically tending to establish a correct estimate of the value of the damaged or destroyed property may be considered to determine actual cash value at the time of the loss.&#160; Pertinent factors under the broad evidence rule include the property’s original cost and valuations provided by appraisers or the property owner.&#160; It is enough that the evidence shows the extent of the damages as a matter of just and reasonable inference, if a reasonable basis of computation and the best evidence available under the circumstances will enable the fact finder to arrive at an approximate estimate of the loss.&#160; In applying the broad evidence rule to determine actual cash value, courts do not abandon consideration of market value, but instead use it as a guide in analyzing actual cash value under the broad evidence test.&#160;</p>
<p>Property insurance policies will often include "replacement cost" as an alternative measure of your loss.&#160; Replacement cost will frequently be limited to replacement by "materials of like kind and quality," or something similar.&#160; “Like kind and quality” refers to that which is sufficient to restore the property to its pre-loss condition.&#160; It relates to quality and suitability or fitness for the purpose for which the product was intended. &#160;Typically, repair or replacement costs include any cost that an insured is reasonably likely to incur repairing or replacing a covered loss.&#160; That includes materials and labor needed to repair or replace property. </p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Mon, 17 Feb 2014 13:16:00 +0000http://erbelaw.com/blog/posts/determining-the-amount-of-your-loss-for-a-property-damage-insurance-claim
Remember To Clear Snow From Your Vehicle During Wintertime Driving<p><img data-rel="225x255" alt="Article 1242868 07 D8 D03 C000005 Dc 13 634x491" title="Article 1242868 07 D8 D03 C000005 Dc 13 634x491" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDUvMjMvNTYvNDY1L2FydGljbGVfMTI0Mjg2OF8wN0Q4RDAzQzAwMDAwNURDXzEzXzYzNHg0OTEuanBnIl0sWyJwIiwidGh1bWIiLCIyMjV4MjU1PiJdLFsicCIsInN0cmlwIl1d/article-1242868-07D8D03C000005DC-13_634x491.jpg" height="174" width="225" /></p>
<p>One thing that people seem to overlook during the winter is adequately clearing their vehicles of snow after their cars and trucks have been sitting outside during a snowfall.&#160; In the rush to get going, drivers don't fully clear their windows, hood, roof, headlights, tail lights and brake lights, turn signals, and side mirrors.&#160; That has the potential to cause <a title="Train And Railroad Accident Law" href="/practice-areas/personal-injurywrongful-death-law/train-and-railroad-accident-law--3">railroad and train accidents</a>, <a title="Motor Vehicle Accidents" href="/practice-areas/motor-vehicle-accidents">car accidents</a>, <a title="Trucking Accidents" href="/practice-areas/motor-vehicle-accidents/trucking-accidents">truck accidents</a>, and <a title="Pedestrian Accidents" href="/practice-areas/personal-injurywrongful-death-law/pedestrian-accidents">pedestrian accidents</a> that can seriously <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">injure or kill</a> people.</p>
<p>A car or truck covered in snow can be dangerous in several ways.&#160; The obvious one is reduced visibility through any windows that you haven't fully cleared of snow.&#160; Even failing to clear a small amount of snow can be risky because pedestrians and vehicles in the distance may be small enough because of the distance to be blocked by any patches of snow that you've left on a window.&#160; All of that is true for your side mirrors as well, but in reverse.&#160; Your side mirrors won't help you see if any vehicles are in your blind spots if they're covered with snow. </p>
<p>Not clearing your headlights and tail lights/brake lights is also dangerous.&#160; If headlights are necessary (and they often are if you're driving during a snowfall, even during the day) they may be dimmed or completely unnoticeable if you've left them covered with snow, making them less useful for you as the driver and less noticeable to other drivers.&#160; Also, it will take longer for people to realize that you're braking if your tail lights/brake lights are not cleared of snow.&#160; And of course turn signals serve an important purpose but are rendered useless if no one can see them under the snow on your vehicle.</p>
<p>A final part of snow removal from a vehicle, which few people do, is clearing the hood, roof, and trunk of snow.&#160; Because of stopping, slowing, accelerating, the prevailing winds, or the windstream caused by a moving vehicle, snow from those areas can move onto a window that you've cleared, causing obstructed views.&#160; That can be a real problem if you're not immediately able to pull off the road and clear the snow.&#160; Snow from your vehicle can also fly off of it and onto another vehicle's windows while you're moving. </p>
<p>Of course clearing your vehicle of snow doesn't do as much good when you're driving during a snowfall since your car or truck may just become snow-covered again.&#160; Here are a few tips on how to reduce that issue while driving.&#160; Make sure your wiper blades are in good condition and in working order so at least your windshield can remain mostly clear.&#160; Also, keep your vehicle's interior warm to help melt any snow that gets on the windows, especially when you've stopped or slowed enough to allow snow to begin accummulating on the windows&#160; </p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Thu, 13 Feb 2014 12:49:00 +0000http://erbelaw.com/blog/posts/remember-to-clear-snow-from-your-vehicle-during-wintertime-driving
The "Continuing Storm" Exception To The Duty To Remove Ice And Snow<p><img data-rel="225x255" alt="1snow7" title="1snow7" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDUvMjUvMzIvOTE0LzFzbm93Ny5qcGciXSxbInAiLCJ0aHVtYiIsIjIyNXgyNTU%2BIl0sWyJwIiwic3RyaXAiXV0/1snow7.jpg" height="255" width="190" /></p>
<p>Just in time for another extended snowfall, on February 5, 2014 the Iowa Court of Appeals issued Iowa’s latest <a title="Premises Liability Law" href="/practice-areas/personal-injurywrongful-death-law/premises-liability-law">premises liability</a> decision, Rochford v. G.K. Development, Inc., regarding a landowner’s possible <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">personal injury or wrongful death</a> liability for failing to timely remove snow or ice that causes a <a title="Pedestrian Accidents" href="/practice-areas/personal-injurywrongful-death-law/pedestrian-accidents">pedestrian</a> to fall. This decision covers a slightly different aspect of this law, known as the “continuing storm” doctrine, than I’ve previously discussed. The focal point of the Rochford decision is landowners’ responsibility for clearing ice or snow while a storm is still occurring and during the period immediately after a storm ends. </p>
<p>Rochford was filed by Karen and Jude Rochford, who sued G.K. Development, owner of the College Square Mall in Cedar Falls, over injuries Karen sustained when she fell on an icy sidewalk outside the mall. One issue the court discussed was whether G.K. Development was allowed to wait for the end of a batch of freezing rain before beginning ice removal efforts. The trial court had dismissed the case because it believed that G.K. Development had no obligation to attempt to remove any ice from the sidewalks until the freezing rain ended.</p>
<p>At the center of the debate in this case was the “continuing storm” doctrine. Under the continuing storm rule, a property owner is entitled to wait until the end of a storm and a reasonable time afterwards before beginning efforts to remove ice or snow. The theory behind that doctrine is that the changing snow and ice conditions that can occur during a storm make it inexpedient and impractical to take effective remedial action during a storm.</p>
<p>The Rochfords argued that a period of wind and freezing rain does not constitute the type of “storm” that the continuing storm doctrine applies to. The Iowa Court of Appeals disagreed, stating that the continuing storm doctrine applies to more types of weather situations than just blizzards. The doctrine can apply to less severe, but still inclement, weather. The court opined that the weather at the time of Karen’s fall, regardless of what label was placed on the weather, was sufficient to immunize G.K. Development under the continuing storm doctrine: “The evidence here establishes that at the time of the plaintiff’s fall at around 4:00 p.m. freezing rain was falling and continued falling until around 10:30 p.m. when the temperature rose above freezing. This freezing rain resulted in the sidewalks icing over, leading to Karen’s fall. The freezing rain had not stopped before Karen’s fall, so the landlord was not yet under a duty to take steps to remove the ice. Whatever this ‘weather event’ is called, we find it was of sufficient significance to qualify for the application of the continuing storm doctrine.”</p>
<p>Rochford highlights a few things that must be considered in these types of snow and ice cases. First, is the weather event “of sufficient significance” to trigger the continuing storm doctrine’s application? In other words, on a scale from a raging blizzard to a few snow flurries, at what point does the weather become bad enough that property owners are allowed to throw up their hands and discontinue efforts to remove snow or ice? Second, even if a weather event is significant enough to implicate the continuing storm rule, had the weather ended and a reasonable amount of time passed before the injured person fell on the snow or ice? </p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Sun, 09 Feb 2014 23:50:00 +0000http://erbelaw.com/blog/posts/the-continuing-storm-exception-to-the-duty-to-remove-ice-and-snow
First Party Insurance Bad Faith<p><img data-rel="225x255" alt="Insurance 290x230" title="Insurance 290x230" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMTMvNDgvMzg0L2luc3VyYW5jZV8yOTB4MjMwLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/insurance-290x230.jpg" height="179" width="225" /></p>
<p>Iowa law requires your <a title="Insurance Law" href="/practice-areas/insurance-law">insurance company</a> to exercise an honest and informed judgment when when you seek compensation or coverage for property damage or physical injuries caused by various insured events, including <a title="Motor Vehicle Accidents" href="/practice-areas/motor-vehicle-accidents">car accidents</a>, <a title="Motorcycle Accident Law" href="/practice-areas/motorcycle-accident-law">motorcycle accidents</a>, and other types of <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">personal injury</a> claims, such as <a title="Fire And Explosion Law" href="/practice-areas/personal-injurywrongful-death-law/fire-and-explosion-law">fires or explosions</a>, <a title="Dog Bite Law" href="/practice-areas/dog-bite-law">dog bites</a>, <a title="Products Liability/Product Warranty Law" href="/practice-areas/products-liabilityproduct-warranty-law">products liability</a>, or <a title="Train And Railroad Accident Law" href="/practice-areas/personal-injurywrongful-death-law/train-and-railroad-accident-law--3">train or railroad</a>, <a title="Premises Liability Law" href="/practice-areas/personal-injurywrongful-death-law/premises-liability-law">premises liability</a>, <a title="Trucking Accidents" href="/practice-areas/motor-vehicle-accidents/trucking-accidents">truck</a>, <a title="Train And Railroad Accident Law" href="/practice-areas/personal-injurywrongful-death-law/train-and-railroad-accident-law--3">train</a>, <a title="Drunk Driving Accidents" href="/practice-areas/motor-vehicle-accidents/drunk-driving-accidents">drunk driving</a>, <a title="Bicycle Accidents" href="/practice-areas/personal-injurywrongful-death-law/bicycle-accidents">bicycle</a>, <a title="Boating Accidents" href="/practice-areas/personal-injurywrongful-death-law/boating-accidents">boating</a>, or <a title="Pedestrian Accidents" href="/practice-areas/personal-injurywrongful-death-law/pedestrian-accidents">pedestrian</a> accidents. If your insurance company fails to do so, it may be liable for “first-party insurance bad faith.” First-party insurance bad faith refer to situations in which an insurance company wrongfully denies the claim of its own policyholder.</p>
<p>A first-party insurance bad faith claim allows an insured to recover more than just the policy benefits that should’ve been paid in the first place. Money damages caused by the claims denial in addition to the original coverage amount can also be recovered, along with punitive damages. A number of reasons have been cited for this extra protection in first-party insurance bad faith cases, including: (1) without this remedy, an insurance company can arbitrarily deny coverage and delay payment of a claim to its insured with no more penalty than interest on the amount owed, (2) insurers are huge operation that dwarf the individual capabilities of their policyholders; first-party insurance bad faith claims are necessary to even the playing field, and (3) policyholders are often in bad and vulnerable positions when they make their insurance claims; the right to bring a first-party insurance bad faith claim is necessary to make the insured’s position a little less vulnerable.</p>
<p>To win a first-party insurance bad faith case, the policyholder has to prove several elements. First, the insured has to establish that the insurer had no reasonable basis for denying the claim. Second, the policyholder also has to show that the insurer knew, or had reason to know, that its denial was without basis.</p>
<p>A defendant can show a reasonable basis for denying benefits and thus disprove the first element of bad faith by showing that a claim for benefits is “fairly debatable.” The Iowa Supreme Court has stated that an insurance claim is fairly debatable if it is “open to dispute on any logical basis.” It’s not enough to merely prove that the insurance company’s claims decision lacked merit. Rather, the Iowa Supreme Court has made clear that “the focus is on the existence of a debatable issue, not on which party was correct.” So an insurance claim will often be deemed “fairly debatable” if the insurer had any evidence on which to justify the denial of the claim. When an objectively reasonable basis for denial of the insurance claim existed, the insurance company cannot be held liable for first-party insurance bad faith as a matter of law. In determining whether an insurance claim is fairly debatable, courts will consider whether the insurance company properly investigated the claim and whether the results of the investigation were subjected to a reasonable evaluation and review.</p>
<p>Even if an insured can prove that an insurance claim was not fairly debatable and should have been paid, the policyholder still has to prove the second element of first-party insurance bad faith, which is that the insurer knew or should have know that there was no basis for its claims denial. This second element can be proved through innumerable methods. One method is the insurance company’s history of paying past similar claims. Another is internal documents from the insurance company regarding claims practices for the specific type of claim. Those are just a few examples. </p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Thu, 06 Feb 2014 12:19:00 +0000http://erbelaw.com/blog/posts/first-party-insurance-bad-faith
Payment Of "Comp" Time For Overtime Work By Public Employees<p><img data-rel="225x255" alt="Clock" title="Clock" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDUvMTAvNTkvODg1L2Nsb2NrLmpwZyJdLFsicCIsInRodW1iIiwiMjI1eDI1NT4iXSxbInAiLCJzdHJpcCJdXQ/clock.jpg" height="207" width="225" /></p>
<p>Unlike in the private sector, where the only legal method for paying overtime is monetary compensation at a 1.5 times the employee's regular hourly rate, public employers may pay overtime to their employees through "compensatory time."&#160; Compensatory time is paid time, <em>not unpaid time</em>, off that the employee earns instead of overtime.&#160; It's like accruing extra vacation time instead of extra money when a public employee works overtime.&#160; Federal overtime laws place stringent restrictions on public employers that want to use compensatory time to pay for overtime.&#160; </p>
<p>First, public employees must receive compensatory time at a rate of 1.5 hours for every hour over forty that are worked in a given workweek.&#160; Compensatory time is not earned on a straight hour-to-hour ratio.&#160; It's legal for public employers to instruct an employee to stop working for the week and avoid overtime if the employer has reached forty hours.</p>
<p>Second, there are limits on how much compensatory time an employee can earn in a year.&#160; If the work of an employee for which compensatory time may be provided included work in a public safety activity, an emergency response activity, or a seasonal activity, the employee engaged in such work may accrue not more than 480 hours of compensatory time for hours worked.&#160; If such work was any other work, the employee engaged in such work may accrue not more than 240 hours of compensatory time for hours worked.&#160; Once an employee reaches that limit, any additional overtime must be paid through the standard "premium rate" compensation of monetary pay at the time-and-a-half rate.</p>
<p>Finally, once an employee requests the use of compensatory time off, the employee has to be allowed to use it within a reasonable period after making the request if the use of the compensatory time does not unduly disrupt the employer's operations.&#160; Whether a request to use compensatory time has been granted within a reasonable period will be determined by considering the customary work practices within the employer based on the facts and circumstances in each case.&#160; Such practices include, but are not limited to (a) the normal schedule of work, (b) anticipated peak workloads based on past experience, (c) emergency requirements for staff and services, and (d) the availability of qualified substitute staff.&#160; Mere inconvenience to the employer is an insufficient basis for denial of a request for compensatory time off.&#160; For an agency to turn down a request from an employee for compensatory time off requires that it should reasonably and in good faith anticipate that it would impose an unreasonable burden on the agency's ability to provide services of acceptable quality and quantity for the public during the time requested without the use of the employee's services.&#160; </p>
<p><a title="Overtime Law" href="/practice-areas/overtime-law">Overtime cases</a> require legal analysis of federal statutes, U.S. Department of Labor regulations, and court decisions.&#160; I can help you with any <a title="Employment &amp; Labor Law" href="/practice-areas/employment-labor-law">employment law or labor law</a> questions that you might have.&#160; Please feel free to contact me for a free initial consultation about employment law or labor law.</p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Wed, 05 Feb 2014 13:37:00 +0000http://erbelaw.com/blog/posts/payment-of-comp-time-for-overtime-work-by-public-employees
The Importance Of Proper Brake Maintenance<p><img data-rel="225x255" alt="Car" title="Car" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDQvMTcvNDYvMjU2L2Nhci5qcGciXSxbInAiLCJ0aHVtYiIsIjIyNXgyNTU%2BIl0sWyJwIiwic3RyaXAiXV0/car.jpg" height="255" width="170" /></p>
<p>Brakes are so important for driving safety that they are specifically regulated by Iowa Code 321.431. Per Iowa law, the brakes on any motor vehicle generally must be adequate to stop a vehicle having a gross weight of less than 5,000 pounds within a distance of 30 feet or a vehicle having a gross weight in excess of 5,000 pounds within a distance of 45 feet when traveling 20 miles per hour on a dry asphalt or concrete surface. It’s important to keep your brakes in good working condition and know how to properly use them to avoid causing <a title="Motor Vehicle Accidents" href="/practice-areas/motor-vehicle-accidents"></a>
<a title="Motor Vehicle Accidents" href="/practice-areas/motor-vehicle-accidents">car</a> accidents, <a title="Trucking Accidents" href="/practice-areas/motor-vehicle-accidents/trucking-accidents">truck accidents</a>, <a title="Motorcycle Accident Law" href="/practice-areas/motorcycle-accident-law">motorcycle</a> accidents, or <a title="Pedestrian Accidents" href="/practice-areas/personal-injurywrongful-death-law/pedestrian-accidents">pedestrian accidents</a> and <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">injuring or killing</a> someone.</p>
<p>Because your vehicle’s brake system is crucial for stopping your vehicle as safely and quickly as possible, proper brake maintenance is vital to the safety of you, your passengers, and other vehicles and pedestrians sharing the road with you. Your vehicle’s handling can provide you with various warning indications that your braking system has a problem, in addition to any electronic warnings that your vehicle’s operating system may provide. Even if you’ve noticed no indications or warnings that your brake system needs a look, it’s still a good idea to have your braking system inspected at least once a year. That of course is frequently done as part of any oil change service.</p>
<p>So what are some of the common signs that there’s an issue with your braking system? Certainly increased stopping time or distance in normal driving conditions should tell you that your brake pads are wearing out. Squealing or squeaking brakes are also a well-known warning sign that something’s wrong. The squealing or squeaking sound occurs because your brake pads have become so worn down that they begin to rub against the brake rotor. Another red flag is “soft brakes.” Your brake system needs to be inspected if the brake pedal seems “soft,” meaning that the brake pedal depresses farther down than it usually does. </p>
<p>Having properly working brakes is only part of the equation. You also have to know how to safely use them. The time it takes to bring your vehicle to a complete stop depends upon many interrelated factors. Those factors include your vehicle’s weight, size, height, load, and the size, condition, and pressure of the vehicle’s tires. </p>
<p>The stopping distance is measured from the point when you begin to apply the brakes. That point in turn is dependent upon your reaction time. Your reac¬tion time is the time it takes you to see the need to stop and get your foot on the brake pedal. Your reaction time can be affected not only by your reflexes, but also visibility or traffic conditions that may cause a delay in your ability to recognize the need to brake.</p>
<p>Road surfaces also impact your stopping time. Loose surfaces, such as gravel or dirt, are harder to stop on because they have a different contact with the tires of your vehicle than does a hard concrete or asphalt surface.</p>
<p>Road conditions are a final factor in your vehicle’s stopping time. You should assume the need for more stopping distance and time when there’s snow or ice on the road or it’s wet. At the same time, don’t be overconfident and assume a short stopping distance just because you’re on a hard, dry surface. Even on dry pavement your car will skid if the brakes are applied too hard, so you always need to maintain a proper lookout and a safe following distance regardless of the road surface or conditions.</p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Mon, 03 Feb 2014 12:31:00 +0000http://erbelaw.com/blog/posts/the-importance-of-proper-brake-maintenance
Iowa Law Regarding Left Turns At Intersections<p><img data-rel="225x255" alt="Fh Red Light" title="Fh Red Light" src="/system/images/W1siZiIsIjIwMTQvMDIvMjAvMDUvMzEvMjQvODQ0L2ZoX3JlZF9saWdodC5qcGciXSxbInAiLCJ0aHVtYiIsIjIyNXgyNTU%2BIl0sWyJwIiwic3RyaXAiXV0/fh-red-light.jpg" height="169" width="225" /></p>
<p><a title="Motor Vehicle Accidents" href="/practice-areas/motor-vehicle-accidents">Intersection collisions</a> can be particularly horrific because they often involve head-on or broadside collisions between <a title="Trucking Accidents" href="/practice-areas/motor-vehicle-accidents/trucking-accidents">trucks</a>, cars, or <a title="Motorcycle Accident Law" href="/practice-areas/motorcycle-accident-law">motorcycles</a>. Such collisions can be much more devastating and cause much greater <a title="Personal Injury/Wrongful Death Law" href="/practice-areas/personal-injurywrongful-death-law">injuries</a> than a rear-end crash. One situation that requires extra care is an intersection controlled by traffic lights, especially vehicles turning left on a solid green or blinking yellow light. It’s especially important to know how to safely and legally navigate an intersection where vehicles are waiting to turn left on green.</p>
<p>Iowa Code 321.311 and 321.320 provide the rules for turning left in an intersection with traffic control signals. Vehicles facing a signal displaying a green light or a blinking yellow arrow may turn left through the intersection after yielding the right-of-way to other vehicular and pedestrian traffic lawfully within the intersection. The driver of a vehicle intending to turn left within an intersection shall yield the right-of-way to all vehicles approaching from the opposite direction that are at the intersection or so close to the intersection as to be an immediate danger. Pedestrians must also be allowed to clear the intersection before the turn is begun. Then the driver, having yielded and having given the required signal, may make the left turn.</p>
<p>Drivers approaching an intersection with a traffic control signal and intending to drive straight through it need to be vigilant about traffic from the opposite direction turning left. Drivers going straight through the intersection should not assume that drivers waiting to turn left from the opposite direction see them. Their view may be blocked (for example by other lines of traffic) or they may be distracted. Even if the other driver does see you, they may turn in front of you anyways, perhaps because they think they can “punch it” and get through the intersection before you arrive, because they simply don’t understand the concept of yielding to traffic heading straight through the intersection, or because they don’t care and they’re going through the intersection regardless of what Iowa law requires. So be extra careful when approaching an intersection where traffic is waiting to turn left.</p>
<p>Drivers waiting to turn left at a green light in an intersection should follow some basic safety tips to ensure that they don’t pull out in front of an oncoming vehicle and cause an accident: (1) Be careful if your view is blocked by things like lines of standing traffic. There may be an oncoming vehicle in the far right lane that you can’t see because the rest of the traffic is stopped. If in doubt, stay where you are, wait for traffic to become unquestionably clear, and if necessary wait for the light to turn yellow and then clear the intersection when safe to do so and complete your left turn; (2) move straight into the intersection when the light is green so that you have less to distance to travel and can get through the intersection quicker when it is safe and clear to make your left turn; (3) while waiting to turn left, keep your wheels straight; if you’re hit from behind by another car and you already have your wheels turned left, the force of the collision will shove your vehicle left into the path of oncoming traffic; and (4) don’t forget to look for <a title="Pedestrian Accidents" href="/practice-areas/personal-injurywrongful-death-law/pedestrian-accidents">pedestrians</a> crossing the street in the area where you’ll be completing your left turn. Not only do you not want to hit a pedestrian, but if you begin your left turn and then have to stop suddenly because people are crossing in front of you, you’ll be stopping or slowing in the path of oncoming traffic. </p>
<a href="https://plus.google.com/114747319374395522401?rel=author">By Harley Erbe</a>Tue, 28 Jan 2014 00:04:00 +0000http://erbelaw.com/blog/posts/iowa-law-regarding-left-turns-at-intersections